[Federal Register Volume 84, Number 111 (Monday, June 10, 2019)]
[Proposed Rules]
[Pages 26785-26802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12096]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 30

[190D0102DR/DS5A300000/DR.5A311.IA000119]
RIN 1076-AF13


Standards, Assessments, and Accountability System

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule and Tribal consultation.

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SUMMARY: The Bureau of Indian Education (BIE) is proposing a rule 
developed using a negotiated rulemaking process, as required by the 
2015 Every Student Succeeds Act (ESSA), for implementation of the 
Secretary of the Interior's obligation to define the standards, 
assessments, and accountability system consistent with ESSA for BIE-
funded schools.

DATES: Please submit comments by August 9, 2019. Please see ``V. 
Consultation Schedule'' of this preamble for dates of consultation 
sessions on this proposed rule.

ADDRESSES: You may submit comments by any of the following methods:
    Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs'' under Docket 
BIA-2016-0005.
    Email: [email protected]. Include the number 1076-AF13 in the 
subject line of the message.
    Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative 
Action, U.S. Department of the Interior, 1849 C Street NW, Mail Stop 
4660, Washington, DC 20240. Include the number 1076-AF13 in the subject 
line of the message.
    Hand delivery: Elizabeth Appel, Office of Regulatory Affairs & 
Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW, Mail Stop 4660, Washington, DC 20240. Include the number 1076-AF13 
in the subject line of the message.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and search for 
Docket Number BIA-2016-0005. We cannot ensure that comments received 
after the close of the comment period (see DATES) will be included in 
the docket for this rulemaking and considered.
    Comments on the information collections contained in this proposed 
regulation (see ``Paperwork Reduction Act'' section, below) are 
separate from those on the substance of the rule. Send comments on the 
information collection burden to OMB by facsimile to (202) 395-5806 or 
email to the OMB Desk Officer for the Department of the Interior at 
[email protected]. Please send a copy of your comments to the 
person listed in the FOR FURTHER INFORMATION CONTACT section of this 
notice.
    Please see ``V. Consultation Schedule'' of this preamble for 
addresses of consultation sessions on this proposed rule.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. General Description of the Proposed Rule
III. Section-by-Section Analysis
IV. Other Proposed Changes Under Consideration
V. Consultation Schedule
VI. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Reducing Regulation and Controlling Regulatory Costs (E.O. 
13771)
    C. Regulatory Flexibility Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act
    F. Takings (E.O. 12630)

[[Page 26786]]

    G. Federalism (E.O. 13132)
    H. Civil Justice Reform (E.O. 12988)
    I. Consultation With Indian Tribes (E.O. 13175)
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Effects on the Energy Supply (E.O. 13211)
    M. Clarity of this Regulation
    N. Public Availability of Comments

I. Background

    The Office of Indian Education Programs (OIEP), now the BIE, 
published the existing rule for Adequate Yearly Progress (AYP), 
codified at 25 CFR part 30 (part 30), in the Federal Register on April 
28, 2005 (70 FR 22178), effective May 31, 2005. The Elementary and 
Secondary Education Act of 1965 (ESEA), as amended and reauthorized by 
the No Child Left Behind Act of 2001 (NCLB), Public Law 107-110, 
required the Secretary of the Interior (Secretary) to engage in a 
negotiated rulemaking process to define AYP. NCLB required that AYP be 
defined on a regional or Tribal basis, as appropriate, taking into 
account the unique circumstances and needs of BIE-funded schools and 
the students served by those schools and provided further that, 
consistent with the negotiated rulemaking requirement, the Secretary 
could use State definitions of AYP. The NCLB Negotiated Rulemaking 
Committee ultimately recommended a rule requiring the BIE to use the 
definition of AYP of the State in which a BIE-funded school is located, 
with the option for a Tribal governing body or school board to develop 
and implement alternative definitions of AYP. The existing part 30 
resulted from that recommendation.
    There are BIE-funded schools in 23 different States, each State 
having its own accountability system. As a result, under the existing 
rule, each State system has produced student achievement data for BIE-
funded schools that is not comparable with data from BIE-funded schools 
following the requirements of other States. This outcome has created 
problems for the BIE in identifying under-performing schools, 
reporting, and in directing resources effectively.
    On November 9, 2015, BIE published a notice of intent requesting 
nominations for members of a proposed negotiated rulemaking committee 
to recommend revisions to the existing part 30 AYP regulations (80 FR 
69161). On December 10, 2015, ESEA was reauthorized and amended by the 
ESSA (Pub. L. 114-95). The ESSA requires the Secretary to use a 
negotiated rulemaking process to develop regulations to implement the 
Secretary's responsibility to define the standards, assessments, and 
accountability system, consistent with ESEA section 1111, for BIE-
funded schools on a national, regional, or Tribal basis, as 
appropriate, taking into account the unique circumstances and needs of 
the schools and the students served by the schools. The requirement 
that the Secretary define the standards, assessments, and 
accountability system marks a significant expansion of requirements in 
the ESEA as amended by NCLB. The reauthorization of ESEA therefore 
required an update to the subject, scope, and issues that the proposed 
committee would address. On April 14, 2016, BIE announced its intent to 
expand the scope of the work of the committee and reopened the comment 
and nomination period, requesting comments and nominations by May 31, 
2016 (81 FR 22039). The request for nominations was extended on August 
17, 2016 (81 FR 54768). On January 18, 2017, a notice of proposed 
membership, request for nominations, and a request for comments was 
published (82 FR 5473). On September 14, 2017, taking into 
consideration the interests of the new Administration in participating 
fully in the negotiated rulemaking process, BIE published a new request 
for nominations and notice of intent to establish a negotiated 
rulemaking committee (82 FR 43199). On April 17, 2018, the BIE 
published a notice of proposed membership of the committee and a 
request for further nominations (83 FR 16806).
    On July 26, 2018, the Secretary signed a charter for the Bureau of 
Indian Education Standards, Assessments, and Accountability System 
Negotiated Rulemaking Committee (Committee). The Secretary established 
the Committee to advise the Secretary, through the BIE and the 
Assistant Secretary-Indian Affairs, on the development of regulations 
to fulfill the Secretary's responsibility to define the standards, 
assessments, and accountability system consistent with ESEA section 
1111, as amended, for schools funded by BIE on a national, regional, or 
Tribal basis, as appropriate, taking into account the unique 
circumstances and needs of BIE-funded schools and the students served, 
and the process for waiving certain requirements, with a focus on the 
regulations in part 30, Adequate Yearly Progress. On August 2, 2018, 
the BIE published a notice of the Committee's establishment and a 
notice of meetings (83 FR 37822). The Committee first met in September 
of 2018 and agreed on protocols and a definition of consensus. The 
Committee met again in October and December of 2018. On February 11, 
2019, the BIE published a notice announcing a fourth public Committee 
meeting that was held in March 2019 (84 FR 3135). In compliance with 
the Negotiated Rulemaking Act and the Federal Advisory Committee Act, 
the meetings were open to the public to provide the public with an 
opportunity to participate in the rulemaking process.
    There were a combined 17 primary and alternate members of the 
Committee, consisting of both Federal and non-Federal members. Members 
of the Committee consisted of representatives capable of representing 
the interests of students enrolled at the 174 BIE-funded schools,\1\ 
parents of such students, school administrators, Tribes, the Indian 
communities served by BIE-funded schools, and the U.S. Government. A 
third-party neutral facilitator led all of the meetings, coordinated 
caucuses, provided the official minutes, and drafted the final report.
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    \1\ This number excludes nine BIE-funded peripheral dormitories 
near reservations for students attending public schools.
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    The work of the Committee required committee members to develop an 
understanding of the technical aspects of the topics of standards, 
assessments, and accountability systems. The Committee divided itself 
into subcommittees tasked with developing recommendations and reporting 
back to the Committee as a whole for each of the topics of standards, 
assessments, accountability systems, and waivers and technical 
assistance. The Committee focused on establishing a rule that would 
provide a framework in which the Secretary could develop or adopt 
requirements for standards, assessments, and accountability system and 
which would provide flexibility in implementing these requirements in 
order to allow for periodic revision of requirements as necessary 
consistent with the provision in ESEA section 1111 requiring the 
periodic review and revision of such requirements by States. During 
Committee discussion, some Committee members expressed concerns related 
to certain parts of title 25 of the Code of Federal Regulations (CFR) 
relating to the BIE for which the NCLB Rulemaking Committee made 
recommendations, but that were unrelated to the BIE Standards, 
Assessments, and Accountability System Committee's charge. While not 
within the scope of the Committee's charge, the Committee documented 
its concerns and recommendations on those items in the final report.

[[Page 26787]]

    BIE commends the Committee for their dedicated work on developing 
an understanding of a complicated subject matter and for reaching 
consensus on recommendations for many aspects of regulations necessary 
to implement requirements for standards, assessments, and 
accountability system at BIE-funded schools. The members' work resulted 
in the development of a recommendation on a rule that would ensure 
that, through a unified system of requirements, both BIE-funded schools 
and the students served by those schools receive all of the support and 
guidance that they need to provide for a high-quality education at BIE-
funded schools. In addition, the Committee reached consensus on 
recommendations to assure that Tribal governing bodies or school boards 
that waive the Secretary's requirements and submit proposals for 
alternative requirements are properly supported in their efforts to do 
so.

II. General Description of the Proposed Rule

    In April 2019, the Committee transmitted the Standards, 
Assessments, and Accountability System Negotiated Rulemaking Committee 
Final Consensus Report (report) to the Secretary summarizing 
recommendations on which the Committee reached consensus for 
regulations that would allow the Secretary to implement unified 
requirements for standards, assessments, and accountability system for 
BIE-funded schools and also support Tribal governing bodies or school 
boards that wish to pursue requirements alternative to the ones 
established by the Secretary. The report forms the basis for this 
proposed rule and is an essential part of the history for this proposed 
rulemaking. The Committee's recommendations to revise existing part 30, 
is found in Appendix E of the report. You can find the report, along 
with the minutes and other supporting materials for all meetings at the 
Committee's website at https://www.bie.edu/Resources/NRMC/index.htm.
    The Secretary is mandated by section 8204 of ESEA to establish 
requirements for standards, assessments, and accountability system for 
BIE-funded schools consistent with ESEA section 1111, as amended, on a 
national, regional, or Tribal basis, as appropriate, taking into 
account the unique circumstances and needs of BIE-funded schools and 
the students served by those schools. Within this context, the purpose 
of this negotiated rulemaking is to ensure that the Secretary and BIE 
are able to meet this requirement and their obligations to both BIE-
funded schools and the children served by such schools. It is the 
intent of this proposed rule to provide simplicity, certainty, clarity, 
and consistency for the 174 BIE-funded schools, the students served by 
those schools, the parents of those students, school administrators, 
Tribes, and the Indian communities served by BIE-funded schools.
    Among other things, the proposed rule would:
     Require the Secretary to be guided by the principles 
described in 25 CFR part 32 when engaging in activities under the 
proposed part 30;
     Require the BIE to develop a Standards, Assessments, and 
Accountability Plan in consultation with stakeholders that would 
provide Indian Tribes, parents, and stakeholders with quality, 
transparent, information about how the requirements of ESEA, as 
amended, will be implemented at BIE-funded schools;
     Reflect the language and requirements of section 1111 of 
ESEA for the standards, assessments, and accountability system, taking 
into account the unique circumstances and needs of BIE-funded schools 
and the students served by those schools;
     Require standards and assessments in Tribal civics;
     Incorporate Tribal civics and science into the 
accountability system of BIE-funded schools;
     Recognize the right of Tribal governing bodies or school 
boards to use Native American languages as a medium of instruction at 
BIE-funded immersion schools;
     Incorporate certain provisions from U.S. Department of 
Education regulations relating to assessments;
     Generally require BIE-funded schools to follow the 
requirements established by the Secretary for the standards, 
assessments, and accountability system unless those requirements have 
been waived by a Tribal governing body or school board and a proposal 
for alternative requirements has been approved by the Secretary and the 
Secretary of Education, as described in section 8204(c)(2) of ESEA;
     Require the Secretary to respond to proposals for 
alternative requirements in a timely manner;
     Require the Secretary to provide technical assistance to 
Tribal governing bodies or school boards in the development of 
proposals for alternative requirements and to respond to such requests 
in a timely manner;
     Include provisions on school supports and interventions; 
and
     Modify language in the current regulations not directly 
addressed by the Committee to align with the requirements of ESEA, as 
amended by ESSA.

III. Section-by-Section Analysis

    Before reading the additional explanatory information below, please 
turn to the proposed rule language that immediately follows the ``List 
of Subjects in 25 CFR part 30'' in this document. DOI will codify this 
language in the CFR if we finalize the proposed rule as written. After 
you have read the proposed rule language, please return to the preamble 
discussion below. The preamble contains additional information about 
this proposed rule, such as why language might differ from the 
recommendation, why we defined a term in a certain manner, or why a 
specific standard was chosen.
    BIE proposes to amend part 30 as a whole. The title of part 30 
would change from ``Adequate Yearly Progress'' to ``Standards 
Assessments, and Accountability System.'' Some of the provisions are 
similar in substance, the same, or mostly the same as in the existing 
rule. However, the increase in scope of subject matter to be covered in 
the proposed rule over the existing rule required replacing certain 
sections and adding others. The main substantive change is the 
elimination of sections describing the definition of AYP and 
consequences for failing to make AYP, and replacing them with sections 
describing rules for defining the standards, assessments, and 
accountability system and school supports and intervention. The 
proposed rule would largely refer to ``requirements'' as opposed to 
``definitions'' as used in the existing part 30 to provide for more 
accuracy and clarity.
What is the purpose of this part? (Section 30.100)
    This proposed section would be substantially the same as the 
current Sec.  30.100, ``What is the purpose of this part?'' However, we 
propose to change a reference to AYP to reflect the new requirement 
that the Secretary define the standards, assessments, and 
accountability system for BIE-funded schools. Further, the Committee 
reached consensus on including language regarding the responsibilities 
of the BIE with regard to providing a high-quality education for 
students served at BIE-funded schools. The Committee liked the language 
found in 25 CFR 32.3, containing the mission statement for the BIE, but 
felt that the text, including legal citations, was distracting. We 
propose to incorporate a statement that in carrying out activities 
under part 30 the Secretary will be guided by the policies

[[Page 26788]]

described throughout 25 CFR part 32, which have the status of codified 
law through 25 U.S.C. 2003.
What definitions apply to terms in this part? (Section 30.101)
    As proposed, this section would be substantially the same as the 
current Sec.  30.101, ``What definitions apply to terms in this part?'' 
However, we propose to update the terms to refer to the ``Bureau of 
Indian Education'' as opposed to the ``Office of Indian Education 
Programs'' or ``Bureau of Indian Affairs.'' We also propose to add 
definitions for ``Alternative proposal,'' ``Foster care,'' ``Native 
American language,'' ``Standards, Assessments, and Accountability 
Plan,'' ``Tribal governing body or school board,'' and ``Waiver.'' 
These new definitions are proposed for addition in response to 
recommendations from Committee members, or are intended to address 
issues raised by Committee members.
Standards, Assessments, and Accountability System Requirements (Subpart 
A)
    This proposed Subpart would be similar to the existing Sec. Sec.  
30.102 through 30.104 of Subpart A, ``Defining Adequate Yearly 
Progress,'' of part 30. As proposed, this subpart will contain the 
rules for how the Secretary will develop or implement requirements for 
standards, assessments, and accountability system at BIE-funded 
schools.
What does the Act require of the Secretary? (Section 30.102)
    This proposed section would be similar to the existing Sec.  
30.102, ``Does the Act require the Secretary of the Interior to develop 
a definition of AYP for Bureau-funded schools?'' It describes what 
ESEA, as amended, requires of the Secretary.
How will the Secretary implement standards, assessments, and 
accountability system requirements? (Section 30.103)
    This proposed section would replace the existing Sec.  30.103, 
``Did the Committee consider a separate Bureau definition of AYP?'' As 
proposed, this section would describe a process for developing a 
Standards, Assessments, and Accountability Plan that would provide 
Indian Tribes, parents, and other stakeholders with quality, 
transparent, information about how the Act will be implemented for BIE-
funded schools. The proposed section would require periodic review and 
revision of the Secretary's requirements established under part 30 as 
is required of States in ESEA section 1111. The proposed section 
describes ongoing and meaningful consultation with a diverse group of 
stakeholders. In parity with State authorities, the proposed section 
also would allow the BIE to voluntarily partner with States or Federal 
agencies in the development or implementation of challenging academic 
standards and assessments. This proposed section would incorporate 
language recommended by the Committee recognizing the right of Tribal 
governing bodies or school boards to use Native American languages as a 
medium of instruction at BIE-funded immersion schools but moving the 
proposed subsection from Sec.  30.104(g) to Sec.  30.103(e). BIE 
proposes to omit language recommended by the Committee for the proposed 
Sec.  30.103(e) stating that the BIE would provide technical assistance 
if requested because BIE and the Department of Education are required 
under section 8204 of the ESEA to provide technical assistance within 
the context of the waivers and alternative requirements. The rule as 
proposed eliminates some redundancies in the language recommended by 
the Committee by consolidating the Committee's recommendations on 
paragraphs (b) and (c) and paragraphs (d) and (e) into paragraphs (b) 
and (c), but retains the meaning intended by the Committee.
How will the Secretary implement requirements for standards? (Section 
30.104)
    This and the following three proposed sections would replace the 
existing Sec.  30.104, ``What is the Secretary's definition of AYP?'' 
They would describe the parameters around which the Secretary will 
develop or implement requirements for the standards, assessments, and 
accountability system and largely mirror the requirements of section 
1111 of the Act. As proposed this section would describe how the 
Secretary will develop or implement requirements for standards at BIE-
funded schools.
    The rule as proposed would delete language recommended by the 
Committee regarding the implementation of standards ``on a national, 
regional, or Tribal basis, as appropriate, taking into account the 
unique circumstances and needs of such schools and the students served 
by such schools'' both because the general requirements of section 8204 
of the ESEA are already described in the proposed 25 CFR 30.102, and 
also because the Committee expressed an interest in national 
requirements subject to the process for waiving such requirements and 
approval of proposed alternative requirements. As proposed, the rule 
would specify a gradual requirement to have an ``other'' standard in 
Tribal civics. The Tribal civics standards would, as described by the 
Committee in the final report, be created and implemented for grades K-
12 and would encompass elements such as Tribal sovereignty, self-
determination, treaty law, land and water rights, laws based on Tribal 
customs and beliefs, Tribal and State relations, Tribal government 
processes, contemporary issues such as gaming, rights around taxation, 
and sacred lands as well as historical events and policies that have 
impacted Native peoples from a Native American perspective, including 
ideas on colonization, termination, and Manifest Destiny. As proposed, 
the Tribal civics standards would be developed after the regulations in 
this part are final. As noted above, the rule as proposed would move 
the Committee's recommendation on Sec.  30.104(g) to Sec.  30.103(e).
How will the Secretary implement requirements for assessments? (Section 
30.105)
    The Committee did not reach consensus on a recommendation with 
regard to assessments. The BIE proposes to separate into two sections 
the general requirements for assessments and provisions on the 
inclusion of all students in assessments. As proposed, this section 
would describe how the Secretary would develop or implement 
requirements for assessments at BIE-funded schools. The section would 
gradually require assessments in Tribal civics.
    The proposed section would omit a provision discussed by the 
Committee that would have been similar to a provision in the Department 
of Education's regulations. See 34 CFR. 200.6(j)-(k). The Department of 
Education provision says that States are not required to use 
assessments written in English to assess student achievement in meeting 
State academic standards in read/language arts, mathematics, or science 
for a student who is enrolled in a school or program that provides 
instruction primarily in a Native American language, provided certain 
additional requirements have been met. BIE proposes to omit this 
language from Sec.  30.105 because Sec.  30.105 addresses how the 
Secretary would implement requirements for assessments for BIE-funded 
schools and not what a Tribal governing body or school board might 
accomplish through a proposal for alternative requirements as described 
in subpart B. Further, it is

[[Page 26789]]

already the established policy of the United States to encourage and 
support the use of Native American languages as a medium of 
instruction. The omission does not limit the options available to 
Tribal governing bodies or school boards proposing alternative 
requirements.
    As proposed, this section would incorporate certain sections within 
the Department of Education's regulations of which the Committee took 
note during the fourth Committee meeting. As proposed, the section 
would also delete language discussed by the Committee regarding locally 
selected assessments. BIE proposes to omit this language because this 
provision might conflict with the process described in section 8204(c) 
of the ESEA for waiving requirements established by the Secretary and 
for approval of alternative requirements, including the role of the 
Secretary of Education in the process. Omitting this language will not 
limit the options that are available for alternative requirements since 
the use of such locally selected assessments could be proposed as an 
alternative requirement. As proposed, the section also clarifies that 
all required BIE assessments must undergo peer review.
How will the Secretary provide for the inclusion of all students in 
assessments? (Section 30.106)
    As proposed, this section would describe how the Secretary would 
provide for the inclusion of all students in assessments.
How will the Secretary include students with disabilities in 
assessments? (Section 30.107)
    As proposed, this section would describe how the Secretary would 
provide for the inclusion of all students with disabilities in 
assessments and have appropriate accommodations. This section would 
also incorporate information conforming to certain sections of the 
Department of Education's regulations highlighted by the Committee 
during the fourth Committee meeting.
How will the Secretary provide for alternative assessments for students 
with the most significant cognitive difficulties? (Section 30.108)
    As proposed, this section would describe how the Secretary would 
align alternative assessments for students with the most significant 
cognitive difficulties with alternate academic achievement standards. 
This section would also incorporate information conforming to certain 
sections of the Department of Education's regulations highlighted by 
the Committee during the fourth Committee meeting.
How will the Secretary include English learners in content assessments? 
(Section 30.109)
    As proposed, this section would describe how the Secretary would 
include English learners in content assessments, this section would 
incorporate information conforming to certain sections of the 
Department of Education's regulations highlighted by the Committee 
during the fourth Committee meeting. This section would also clarify 
the requirements for English learners, and that the BIE may ask for the 
assistance of the Secretary of Education to meet such requirements.
How will the Secretary ensure BIE-funded schools will provide for 
annual assessments of English language proficiency for English 
learners? (Section 30.110)
    As proposed, this section would describe how the Secretary would 
provide for annual assessments of English language proficiency for 
English learners. This section would also incorporate information 
conforming to certain sections of the Department of Education's 
regulations highlighted by the Committee during the fourth Committee 
meeting.
How will the Secretary implement requirements for accountability 
system? (Section 30.111)
    As proposed, this section would describe how the Secretary would 
develop or implement accountability system requirements at BIE-funded 
schools. As proposed, the section would gradually incorporate Tribal 
civics into the BIE-funded school accountability system as a School 
Quality and Student Success (SQSS) indicator. The proposed rule would 
require the review of the use of Tribal civics as an SQSS and allow for 
the later implementation of Tribal civics as an Academic Achievement 
Indicator. The Committee discussed the inclusion of science in the 
BIE's accountability system, but did not discuss how. As such, the 
proposed section would incorporate science into the BIE's 
accountability system and would provide the Secretary with discretion 
as to how to incorporate science. As proposed, the section would use 
the extended-year adjusted cohort graduation rate in addition to the 
four-year adjusted cohort graduation rate for long-term goals.
Waiver of Requirements, Technical Assistance, and Approval of 
Alternative Requirements (Subpart B)
    This proposed subpart would be similar to the existing Sec. Sec.  
30.105-30.113 in the existing subpart A of part 30 regarding 
alternative definitions of AYP, technical assistance, and approval of 
alternative definitions. Throughout this subpart, the BIE proposes to 
change the use of the word ``plan'' as recommended by the Committee to 
``proposal'' to better align the language of the proposed rule with the 
language of section 8204(c)(2) of the ESEA describing submission of 
proposals for alternative requirements.
May a Tribal governing body or school board waive the Secretary's 
requirements for the standards, assessments, and accountability system? 
(Section 30.112)
    This proposed section would be similar to the existing Sec.  
30.105, ``May a Tribal governing body or school board use another 
definition of AYP?'' As proposed, this section confirms that Tribal 
governing bodies and school boards at Public Law 100-297 grant or 
Public Law 93-638 contract schools may waive the Secretary's 
requirements in part in or whole. As proposed, this section would also 
clarify that the Secretary's requirements apply until the Secretary and 
the Secretary of Education have approved an alternative proposal, 
unless a BIE-funded school is following a State system as described in 
Sec.  30.113.
How does a Tribal governing body or school board waive the Secretary's 
requirements? (Section 30.113)
    This proposed section would be similar to the existing Sec.  
30.106, ``How does a Tribal governing body or school board propose an 
alternative definition of AYP?'' As proposed, this section deletes 
language recommended by the Committee to the effect that ``Bureau-
operated schools are not eligible for waivers.'' This proposed section 
omits this language because the definition of ``Tribal governing body 
or school board'' provided in the proposed Sec.  30.101 would exclude 
Bureau-operated school boards. This proposed section would describe a 
process for submission of notice of a waiver to the Secretary and the 
Secretary of Education, and submission of a proposal for alternative 
requirements within the statutorily prescribed 60 days of notice of a 
waiver. The proposed section would encourage Tribal governing bodies or 
school boards to request technical assistance in advance of providing 
notice of a waiver. The section would authorize a Tribal

[[Page 26790]]

governing body or school board to request an extension of the statutory 
60-day timeline for submission of proposals for alternative 
requirements. The section would explain that this process applies 
anytime a Tribal governing body or school board proposes alternative 
requirements, or proposes changes to approved alternative requirements. 
The section provides that the Secretary will work with the Secretary of 
Education to develop templates to assist in the development of 
alternative requirements.
    As proposed, the section would provide that during the transition 
to the Secretary's requirements established under this part, and at any 
time thereafter, a Tribal governing body or school board may elect to 
follow the standards and assessments of a State without having to 
submit such requirements under the process for approval of alternative 
requirements, provided that the Secretary is notified of this intention 
and provided that the State agrees.
What should a Tribal governing body or school board include in an 
alternative proposal? (Section 30.114)
    This proposed section would be similar to the existing Sec.  
30.107, ``What must a Tribal governing body or school board include in 
its alternative definition of AYP?'' As proposed, this section would 
require proposals for alternative requirements to include an 
explanation of how the alternative proposal meets the requirements of 
ESEA section 1111, taking into account the unique circumstances and 
needs of BIE-funded schools and the students served at those schools.
May proposed alternative requirements use parts of the Secretary's 
requirements? (Section 30.115)
    This proposed section would be similar to the existing Sec.  
30.108, ``May an alternative definition of AYP use parts of the 
Secretary's definition?'' As proposed, this section would explain that 
proposals for alternative requirements may use parts of the Secretary's 
requirements and that, where these are incorporated, the alternative 
proposal should identify those requirements.
Will the Secretary provide technical assistance to Tribal governing 
bodies or school boards seeking to develop alternative requirements? 
(Section 30.116)
    This section would be similar to the existing Sec.  30.109, ``Will 
the Secretary provide assistance in developing an alternative AYP 
definition?'' As proposed, this section would explain that the 
Secretary and the Secretary of Education are required to provide 
technical assistance. The section would require a Tribal governing body 
or school board to submit a request for technical assistance to the 
Director of the BIE and would provide for technical assistance on an 
ongoing and timely basis.
What is the process for requesting technical assistance? (Section 
30.117)
    This section would be similar to the existing Sec.  30.110, ``What 
is the process for requesting technical assistance to develop an 
alternative definition of AYP?'' As proposed, this section would 
require requests for technical assistance to be in writing to the 
Director of the BIE from a Tribal governing body or school board. It 
would provide that the Director would acknowledge receipt of such a 
request and identify a point of contact within 30 days. The section 
would also provide that the Director and a Tribal governing body or 
school board would work together to identify the form, substance, and 
timeline for providing technical assistance.
When should a Tribal governing body or school board request technical 
assistance? (Section 30.118)
    This section would be similar to the existing Sec.  30.111, ``When 
should the Tribal governing body or school board request technical 
assistance?'' As proposed, this section would provide that a Tribal 
governing body or school board may request technical assistance at any 
time, and would encourage Tribal governing bodies or school boards to 
request technical assistance prior to providing notice of a waiver. The 
section as proposed would alter wording recommended by the Committee 
slightly from ``to issue a waiver'' to ``to waive the requirements 
established by the Secretary'' for clarity.
How does the Secretary review and approve proposals for alternative 
requirements? (Section 30.119)
    This section would be similar to the existing Sec.  30.113, ``How 
does the Secretary review and approve an alternative definition of 
AYP?'' As proposed, this section would describe the process for review 
and approval of proposals for alternative requirements by the Secretary 
and the Secretary of Education. It would also describe that such 
proposals would be approved unless the Secretary of Education 
determines that the alternative requirements do not meet the 
requirements of section 1111 of ESEA, taking into account the unique 
circumstances and needs of BIE-funded schools and the students served 
at those schools. The section would describe how the Secretary would 
begin to coordinate with the Secretary of Education upon receipt of a 
proposal for alternative requirements. The section would require the 
Secretary to provide a status update within 120 days of receipt of a 
proposal for alternative requirements and every 30 days thereafter. The 
section would explain that Tribal governing bodies or school boards 
would be notified promptly of approval of a proposal for alternative 
requirements as well as the effective date of such alternative 
requirements. The section would provide for technical assistance and an 
explanation if a proposal for alternative requirements is not approved. 
Finally, the section would provide that a Tribe could request formal 
consultation if a proposal for alternative requirements is not approved 
or if progress is not being made towards approval.
Support and Improvement (Subpart C)
    This proposed subpart would be analogous to the existing subpart B, 
``Assessing Adequate Yearly Progress,'' and subpart C, ``Failure to 
make Adequate Yearly Progress'' of the existing part 30, Sec. Sec.  
30.114-30.125. As proposed, the subpart would describe requirements for 
comprehensive support and improvement for schools as well as targeted 
support and improvement for schools.
How will the Secretary implement school support and improvement 
activities? (Section 30.120)
    This section would provide that the Secretary would notify BIE-
funded schools identified for comprehensive support and improvement.
How will the Secretary implement comprehensive support and improvement? 
(Section 30.121)
    This section would provide for the development, implementation, and 
monitoring of comprehensive support and improvement plans.
How will the Secretary implement targeted support and improvement? 
(Section 30.122)
    This section would provide that the Secretary would notify schools 
in which any subgroup of students is currently underperforming and 
would provide for the development and implementation of targeted 
support and improvement plans.

[[Page 26791]]

How will the Secretary implement additional targeted support? (Section 
30.123)
    This section would provide that where a school is, for any 
subgroup, within the lowest-performing 5 percent of all schools within 
the BIE-funded school system using the BIE's system for annual 
meaningful differentiation, the targeted support and improvement plan 
would also identify resource inequalities to be addressed through 
implementation of the plan. For the first year of implementation of the 
Secretary's requirements, the section would provide that the Secretary 
will identify any BIE-funded school in which any subgroup of students 
on its own would lead to identification because it would be within the 
lowest-performing 5 percent of all schools.
How will the Secretary implement continued support for BIE-funded 
schools and school improvement? (Section 30.124)
    This section would provide that the Secretary would establish exit 
criteria for schools identified for comprehensive support and 
improvement and schools identified for additional targeted support. The 
section would also provide for the periodic review by the Secretary of 
resource allocations to support school improvement.
Responsibilities and Accountability (Subpart D)
    This proposed subpart would be similar to the existing subpart D, 
``Responsibilities and Accountability,'' Sec. Sec.  30.126 and 30.150.
What is required for the Bureau to meet its report responsibilities? 
(Section 30.125)
    This section would be similar to the existing Sec.  30.126, ``What 
is required for the Bureau to meet its reporting responsibilities?'' 
regarding BIE reporting requirements, but updated to reflect current 
requirements.
Information Collection (Section 30.126)
    This section would be similar to the existing Sec.  30.150, 
``Information collection,'' regarding the collection of information by 
the BIE.

IV. Other Proposed Changes Under Consideration

A. Standards, Assessments, and Accountability Plan

    BIE is considering the advisability of, and whether and to what 
extent, a requirement for a Standards, Assessments, and Accountability 
Plan as described in Sec.  30.103(b) of this proposed rule should be 
incorporated into the final rule and welcomes comments, including 
comments on whether such a requirement should be regulatory or 
addressed elsewhere (such as in the agreement with the Secretary of 
Education required by section 8204(a) of ESEA).

B. Ongoing Stakeholder Consultation and Transparency

    BIE is considering whether and to what extent stakeholder 
consultation as described in Sec.  30.103(c) of this proposed rule 
should be incorporated into the final rule. For instance, such 
requirements could be duplicative of, or in conflict with, existing 
Departmental policies and statutory responsibilities, or might require 
statutory authorization. BIE welcomes comments on these matters.

C. Tribal Civics Standards, Assessments, and Accountability

    The BIE is considering whether and to what extent to specify Tribal 
civics as described in Sec. Sec.  30.104(c)(1)(iv), 30.105(a), and 
30.111(d) in the final rule. For instance, the regulation would 
otherwise authorize the Secretary to implement ``other'' requirements 
without having to specify the other requirements in regulation. 
Further, the BIE thinks that it might be more appropriate for Tribal 
civics to be implemented by a Tribal governing body or school board 
through a proposal for alternative requirements as described in subpart 
B of the proposed rule.

D. Science and Accountability

    The Committee recommended the incorporation of science into the 
BIE's accountability system, but did not specify how it should be 
incorporated. BIE is considering whether and to what extent to specify 
the incorporation of science into the Secretary's accountability system 
as described in Sec.  30.111(c). As with Tribal civics, the regulation 
would otherwise authorize the Secretary to incorporate science and 
other subjects into the accountability system without having to specify 
such other requirements in regulation. Also as with Tribal civics, a 
Tribal governing body could accomplish incorporation of science into 
the requirements applicable at a particular school or school board 
through a proposal for alternative requirements as described in subpart 
B of the proposed rule, as the Miccosukee Tribe of Indians of Florida 
did under the NCLB regulations.
    Some States have incorporated science into their accountability 
systems. However, the majority of States have not. In ESEA, as amended, 
States are required to adopt challenging science academic content 
standards and to implement aligned science assessments in selected 
grades, and in this proposed rule BIE would also be held to those 
requirements. Science requires higher-level literacy and numeracy 
skills, which students in low performing schools generally require 
support to accomplish. Including science as an academic indicator could 
therefore raise the threshold of success for certain students and 
schools. One committee member voiced the opinion that science should be 
included as a weighted indicator because of the importance of the 
subject. BIE agrees with the Committee with regard to the importance of 
science and notes that Congress has also recognized the importance of 
the subject by making it a requirement for all schools in the nation. 
BIE welcomes comments on these matters and on the effect of a 
requirement to incorporate science into the accountability system. BIE 
also welcomes comments on specifying a weight in the regulation for a 
proposed academic indicator for science.

E. Tribal Civics and Science as School Quality and Student Success 
Indicators

    The rulemaking committee recommended two School Quality and Student 
Success (SQSS) indicators: Tribal civics and science. BIE welcomes 
comments on whether, to what extent, and the appropriate method for, 
the inclusion of such indicators. The proposed regulation would 
otherwise require periodic review and revision of the Secretary's 
requirements generally, and would otherwise authorize the Secretary to 
exercise discretion in the inclusion of other subjects into the 
accountability system. BIE notes that some Committee members expressed 
an interest in ensuring that BIE would be held to the same or similar 
requirements as States, and that States generally have discretion in 
the selection and implementation of indicators such as SQSS in response 
to the interests of students. In addition, as with Tribal civics and 
science generally, a Tribal governing body or school board wishing to 
implement Tribal civics and science could likely propose doing so in a 
variety of ways through a proposal for alternative requirements as 
described in Subpart B of the proposed rule.

F. Native American Languages and the Standards, Assessments, and 
Accountability System

    Section 30.104(f) of the proposed rule contains provisions 
describing the right of Tribal governing bodies or school

[[Page 26792]]

boards to use Native American languages as a medium of instruction. BIE 
is considering whether, how, and to what extent Native American 
languages should be described in the proposed rule. The Committee did 
not fully explain the concepts that they wished to recommend be 
incorporated into the proposed rule in regards Native American 
languages. There is a chance of conflict with other statutory and 
regulatory authorities describing the importance and status of Native 
American languages, such as those already supportive of the use of 
Native American languages as a medium of instruction. BIE welcomes 
comments on these and other related matters.

G. School Supports and Interventions

    The Committee did not discuss school supports and interventions as 
described in the proposed rule at subpart C, Sec. Sec.  30.120 through 
30.124. However, BIE is considering whether and to what extent to 
incorporate school supports and interventions into the final rule and 
welcomes comments on the provisions included in this proposed rule, or 
whether such matters should be addressed elsewhere such as in the 
Secretary's Standards, Assessments, and Accountability Plan or in the 
ESEA section 8204(a) agreement with the Secretary of Education. BIE 
also welcomes comment on the amount of autonomy BIE-operated schools 
should have under this process.

H. State Standards and Assessments Opt-In During Transition

    The proposed provisions in Sec.  30.112(g) regarding an option for 
Tribal governing bodies of school boards to opt in to State 
requirements apart from the waiver and alternative proposal process 
described in the proposed subpart B, Sec. Sec.  30.112 through 30.119, 
might conflict with statutory intent in ESEA section 8204(c) regarding 
the approval of alternative requirements, including the statutorily 
prescribed role of the Secretary of Education. In addition, the 
Committee expressed an interest in the establishment of a unified 
system of accountability for BIE-funded schools, and this or similar 
opt-out provisions might conflict with that goal and complicate efforts 
to hold schools accountable. BIE welcomes comments on whether or how to 
incorporate this or similar concepts.

I. Waivers, Timelines for Waivers, and Processing of Proposals 
Alternative Requirements

    BIE is considering changes to the timelines recommended by the 
Committee for waivers and the processing of proposals for alternative 
requirements described in subpart B, Sec. Sec.  30.112 through 30.119, 
and welcomes comments on the proposed timelines. For instance, the 
requirement for status updates on the processing of a proposal for 
alternative requirements every 30 days might require unnecessary or 
redundant communication with a Tribal governing body or school board 
even if there, for instance, is robust and ongoing communication. The 
BIE is further considering changes to the proposed Sec.  30.118 to more 
closely reflect the language of the existing Sec.  30.115 or generally 
amend the language for clarity. The BIE may also omit Sec.  30.119(e) 
from the final rule as it may be duplicative of or in conflict with the 
Department's existing Tribal consultation policies.

J. Supports and Interventions

    The proposed rule contains a subpart C, ``Support and 
Improvement,'' intended to be similar to the existing subpart B, 
``Assessing Adequate Yearly Progress,'' and subpart C, ``Failure to 
make Adequate Yearly Progress.'' The BIE is still considering whether 
or how these or similar provisions should be included in the final rule 
and welcomes comments on this topic. If these provisions are included, 
they may also be included after Sec.  30.111, ``How will the Secretary 
implement requirements for accountability system?'' and before subpart 
B, ``Waiver of Requirements, Technical Assistance, and Approval of 
Proposals for Alternative Requirements.''

V. Consultation Schedule

    The BIE will conduct a series of consultation sessions regarding 
its proposed rule. The Committee provided advice to the Secretary on a 
proposed rule that would provide a framework around which the Secretary 
could develop requirements for the standards, assessments, and 
accountability system and which would provide flexibility in 
implementing these requirements in order to allow for periodic revision 
of requirements as necessary consistent with the provisions in ESEA 
section 1111 requiring the periodic review and revision of the 
requirements. The interests that are likely to be significantly 
affected by the proposed rule are: Students enrolled, or parents of 
students enrolled at the 174 BIE-funded schools, school teachers and 
administrators, Tribes, and Indian communities served by these schools.
    The BIE will conduct five on-site consultation sessions and one 
telephonic sessions. The on-site consultation sessions will be held at 
geographically diverse locations across the country to maximize input. 
BIE will accept both oral and written comments. The following table 
lists dates and locations for the consultations. You can find 
additional information, along with the minutes and other supporting 
materials for all meetings at the Committee's website at https://www.bie.edu/Resources/NRMC/index.htm. The BIE strongly recommends 
interested parties review the proposed rule prior to attending a 
consultation session. The consultation sessions scheduled to date are 
as follows:

------------------------------------------------------------------------
                                 Time (local time   Location information
             Date                     zone)                  *
------------------------------------------------------------------------
Thursday, July 11, 2019.......  8:30 a.m.-5 p.m..  Southwestern Indian
                                                    Polytechnic
                                                    Institute (SIPI),
                                                    9169 Coors Blvd.,
                                                    Albuquerque, NM
                                                    87120.
Tuesday, July 16, 2019........  8:30 a.m.-5 p.m..  Arizona (specific
                                                    venue TBD).
Thursday, July 18, 2019.......  8:30 a.m.-5 p.m..  Oglala Lakota
                                                    College, 490 Piya
                                                    Wiconi Road, Kyle,
                                                    SD 57752.
Tuesday, July 23, 2019........  8:30 a.m.-5 p.m..  2001 Killebrew Drive,
                                                    Minnesota Room,
                                                    Bloomington, MN
                                                    55425.
Friday, July 26, 2019.........  1 p.m.-5 p.m.....  Teleconference or
                                                    webinar.
Tuesday, July 30, 2019........  8:30 a.m.-5 p.m..  Washington (specific
                                                    venue TBD).
------------------------------------------------------------------------
* Please refer to this website for specific and updated information:
  https://www.bia.gov/as-ia/raca/regulations-development-andor-under-review/BIE-SAA.


[[Page 26793]]

    Additional consultation sessions will be announced on the website 
above.

VI. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. The BIE has developed this proposed rule in a manner consistent 
with these requirements. In addition, section 8204 of the ESEA, as 
amended, directs the Secretary of the Interior, in consultation with 
the Secretary of Education, if so requested, to use a negotiated 
rulemaking process to develop regulations for implementation of the 
Secretary of the Interior's obligation to define the standards, 
assessments and accountability system that will be utilized at BIE-
funded schools. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations.

B. Reducing Regulations and Controlling Regulatory Costs (E.O. 13771)

    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities and control regulatory 
costs. E.O. 13771, however, applies only to significant regulatory 
actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 
13771 does not apply to this rule.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

D. Small Business Regulatory Enforcement Fairness Act

    This rule would not be a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more because it is the responsibility and goal for the Federal 
government to provide comprehensive education programs and services for 
Indian Tribes and Alaska Natives.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, Indian or local 
government agencies, or geographic regions because this proposed rule 
affects only the children served at BIE-funded schools.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises 
because this rule affects only the children served at BIE-funded 
schools.

E. Unfunded Mandates Reform Act

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The proposed rule would not have a significant or unique effect 
on State, local, or Tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.) would not be required.

F. Takings (E.O. 12630)

    Under the criteria in section 2 of E.O. 12630, this rule would not 
have any significant takings implications. This rule would not impose 
conditions or limitations on the use of any private property or 
otherwise have taking implications under Executive Order 12630 because 
this rule does not affect individual property rights protected by the 
Fifth Amendment or involve a compensable ``taking.'' A takings 
implication assessment is not required.

G. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. This rulemaking 
would not substantially and directly affect the relationship between 
the Federal and State government. The Secretary of the Interior is 
responsible for managing BIE-funded schools and interacting with Tribal 
governments or Tribal organizations operating Tribally-controlled grant 
and contract schools. Because this rule would not alter that 
relationship, a Federalism summary impact statement is not required.

H. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
writing to minimize litigation.
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

I. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty.
    Under the Department's consultation policy and the criteria in E.O. 
13175, we evaluated this rule and determined that it would have no 
Tribal implications that would impose substantial direct compliance 
costs on Indian Tribal governments.
    Also, under this consultation policy and Executive Order criteria 
with Indian Tribes and other individual stakeholders, BIE has scheduled 
consultations that are listed in Section V. Consultation Schedule.

J. Paperwork Reduction Act

    This rule contains information collections requiring approval under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The 
Department is seeking approval for a new OMB Control Number.
    OMB Control Number: 1076-NEW.
    Title: Standards, Assessments, and Accountability System Waiver.
    Brief Description of Collection: This information collection is 
necessary to implement the ESSA. The ESSA requires all schools, 
including BIE-funded and operated schools, to ensure that all children 
have a fair, equal, and significant opportunity to obtain a high-
quality education and reach, at a minimum, proficiency on challenging 
academic achievement standards and assessments. In order to accomplish 
these goals, the Secretary would develop or implement accountability

[[Page 26794]]

system requirements at BIE-funded schools. Tribal governing bodies and 
school boards at Public Law 100-297 grant or Public Law 93-638 contract 
schools will be able to waive the Secretary's requirements in part in 
or whole and will be required to submit a proposal for alternative 
requirements.
    Type of Review: Existing collection in use without OMB control 
number.
    Respondents: BIE-funded schools.
    Number of Respondents: Two on average (each year).
    Number of Responses: Two on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: 500 hours.
    Estimated Total Annual Hour Burden: 1,000 hours.
    Estimated Total Non-Hour Cost: $0.

K. National Environmental Policy Act

    This rule would not constitute a major Federal action significantly 
affecting the quality of the human environment. We are not required to 
provide a detailed statement under the National Environmental Policy 
Act of 1969 (NEPA) because this rule qualifies for categorical 
exclusion under 43 CFR 46.210(f) and (i) and the DOI Departmental 
Manual, part 516, section 15.4.D: (f)-(i). We have also determined that 
this rulemaking is not involved in any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA.

L. Effects on the Energy Supply (E.O. 13211)

    This rule would not be a significant energy action under the 
definition in Executive Order 13211, and therefore, would not require a 
Statement of Energy Effects.

M. Clarity of this Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and,
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

N. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 30

    Elementary and secondary education, Grant programs--Indians, 
Indians--education, Schools.

    For the reasons set forth in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to revise 25 CFR part 30 
to read as follows:

PART 30--STANDARDS, ASSESSMENTS, AND ACCOUNTABILITY SYSTEM

Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?
Subpart A--Standards, Assessments, and Accountability System 
Requirements
30.102 What does the Act require of the Secretary?
30.103 How will the Secretary implement Standards, Assessments and 
Accountability requirements?
30.104 How will the Secretary implement requirements for standards?
30.105 How will the Secretary implement requirements for 
assessments?
30.106 How will the Secretary provide for the inclusion of all 
students in assessments?
30.107 How will the Secretary include students with disabilities in 
assessments?
30.108 How will the Secretary provide for alternative assessments 
for students with the most significant cognitive difficulties?
30.109 How will the Secretary include English learners in content 
assessments?
30.110 How will the Secretary ensure BIE-funded schools will provide 
for annual assessments of English language proficiency for English 
learners?
30.111 How will the Secretary implement requirements for 
accountability system?
Subpart B--Waiver of Requirements, Technical Assistance, and Approval 
of Proposals for Alternative Requirements
30.112 May a Tribal governing body or school board waive the 
Secretary's requirement for standards, assessments, and 
accountability system?
30.113 How does a Tribal governing body or school board waive the 
Secretary's requirements?
30.114 What should a Tribal governing body or school board include 
in an alternative proposal?
30.115 May proposed alternative requirements use parts of the 
Secretary's requirements?
30.116 Will the Secretary provide technical assistance to Tribal 
governing bodies or school boards seeking to develop alternative 
requirements?
30.117 What is the process for requesting technical assistance?
30.118 When should the Tribal governing body or school board request 
technical assistance?
30.119 How does the Secretary review and approve alternative 
requirements?
Subpart C--Support and Improvement
30.120 How will the Secretary implement school support and 
improvement activities?
30.121 How will the Secretary implement comprehensive support and 
improvement?
30.122 How will the Secretary implement targeted support and 
improvement?
30.123 How will the Secretary implement additional targeted support?
30.124 How will the Secretary implement continued support for 
Bureau-funded schools and school improvement?
Subpart D--Responsibilities and Accountability
30.125 What is required for the Bureau to meet its reporting 
responsibilities?
30.126 What information collections have been approved?

    Authority: Pub. L. 114-94, 129 Stat. 1312, 20 U.S.C. 6311 et. 
seq.; 20 U.S.C. 7824(c).


Sec.  30.100  What is the purpose of this part?

    (a) This part establishes regulations regarding standards, 
assessments, and accountability system at BIE-funded schools consistent 
with section 1111 of the Elementary and Secondary Education Act of 
1965. Nothing in this part:
    (1) Diminishes the Secretary's trust responsibility for Indian 
education or any statutory rights in law;
    (2) Affects in any way the sovereign rights of Indian Tribes; or
    (3) Terminates or changes the trust responsibility of the United 
States to Indian Tribes or individual Indians.
    (b) In carrying out activities under this part, the Secretary will 
be guided by the policies stated in 25 CFR part 32.

[[Page 26795]]

Sec.  30.101  What definitions apply to terms in this part?

    Act means the Elementary and Secondary Education Act of 1965, as 
amended by the Every Student Succeeds Act, Public Law 114-95, enacted 
December 10, 2015.
    Alternative proposal means a proposal submitted by a Tribal 
governing body or school board for requirements, in whole or in part, 
alternative to the ones adopted by the Secretary for standards, 
assessments, or accountability system at Public Law 100-297 grant or 
Public Law 93-638 contract schools under this part.
    BIE-funded school(s) means a school funded by the Bureau of Indian 
Education and includes Bureau-operated schools and Tribally controlled 
schools.
    Bureau or BIE means the Bureau of Indian Education.
    Bureau-operated school means a school operated by the Bureau of 
Indian Education.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Education.
    Foster care means 24-hour substitute care for children placed away 
from their parents and for whom the agency under title IV-E of the 
Social Security Act has placement and care responsibility. This 
includes, but is not limited to, placements in foster family homes, 
foster homes of relatives, group homes, emergency shelters, residential 
facilities, child care institutions, and preadoptive homes. A child is 
in foster care in accordance with this definition regardless of whether 
the foster care facility is licensed and payments are made by the 
State, Tribal, or local agency for the care of the child, whether 
adoption subsidy payments are being made prior to the finalization of 
an adoption, or whether there is Federal matching of any payments that 
are made.
    Native American language means the historical, traditional 
languages spoken by members of federally recognized Indian Tribes.
    Secretary means the Secretary of the Interior or a designated 
representative.
    Subgroup of students means
    (1) Economically disadvantaged students;
    (2) Students from major racial and ethnic groups;
    (3) Children with disabilities; and
    (4) English learners.
    Standards, Assessments, and Accountability Plan means a document 
that will provide Indian Tribes, parents, and stakeholders with 
quality, transparent information about how a standards, assessments, 
and accountability system will be implemented at a BIE-funded school.
    Tribally controlled school means a school operated under a Public 
Law 93-638 contract or Public Law 100-297 grant.
    Tribal governing body or school board means, with respect to waiver 
and submission of proposals for requirements alternative to the 
Secretary's requirements for standards, assessments, and accountability 
system at Tribally controlled schools, the entity authorized under 
applicable Tribal or Federal law to waive the Secretary's requirements 
and propose alternative requirements.
    Waiver means the exercise of authority by a Tribal governing body 
or school board for Tribally controlled schools to elect to implement 
requirements, in part or in whole, alternative to the ones adopted by 
the Secretary pursuant to this part at schools that are under the 
Tribal governing body's or school board's jurisdiction following 
approval of the proposal for alternative requirements by the Secretary 
and the Secretary of Education pursuant to section 8204 of the Act.

Subpart A--Standards, Assessments, and Accountability System 
Requirements


Sec.  30.102  What does the Act require of the Secretary?

    (a) The Act requires the Secretary to define a standards, 
assessments, and accountability system, consistent with section 1111 of 
the Act, for schools on a national, regional, or Tribal basis, as 
appropriate, taking into account the unique circumstances and needs of 
the schools and the students served, using regulations developed 
through a negotiated rulemaking process.
    (b) If it has determined that the requirements described in 
paragraph (a) are inappropriate, a Tribal governing body or school 
board may waive these requirements, in part or in whole, and propose 
alternative requirements for standards, assessments, and accountability 
system that meets the requirements of section 1111 of the Act, taking 
into account the unique circumstances and needs of the school or 
schools and the students served.
    (c) The Secretary and the Secretary of Education will provide 
technical assistance, upon request, either directly or through a 
contract, to a Tribal governing body or school board.


Sec.  30.103  How will the Secretary implement Standards, Assessments, 
and Accountability System requirements?

    (a) The Secretary, through the Director, must prescribe 
requirements for standards, assessments, and accountability system for 
use at BIE-funded schools in accordance with this part. The Secretary 
must periodically review and revise these requirements.
    (b) The Director will implement a Standards, Assessments, and 
Accountability Plan that will provide Indian Tribes, parents, and 
stakeholders with quality, transparent information about how the Act 
will be implemented at BIE-funded schools, including the requirements 
that have been established for standards, assessments, and 
accountability system for BIE-funded schools.
    (c) The Secretary will engage in active, meaningful, ongoing 
consultation with a diverse group of stakeholders inclusive of parents, 
educators (such as administrators and educators from BIE-operated 
schools and Tribally controlled grant schools), students and community 
members, and government-to-government consultation with Tribal 
governments, when creating, implementing, reviewing, and revising the 
requirements for standards, assessments, and accountability system for 
BIE-funded schools. These stakeholder and government-to-government 
consultations will include transparent reporting, recording, and 
responding to input obtained therein.
    (d) The Secretary may voluntarily partner with States, or another 
Federal agency, to develop and implement challenging academic standards 
and assessments.
    (e) Tribal governing bodies or school boards may create their own 
Native American language academic standards and Native American 
language assessments in addition to those required by section 1111 of 
the Act. The Secretary shall not have the authority to mandate, direct, 
control, coerce, or exercise any direction or supervision over such 
standards or assessments or require the submission of such standards 
and assessments to the Secretary for review or approval.


Sec.  30.104  How will the Secretary implement requirements for 
standards?

    (a) The Secretary will implement requirements for academic 
standards for BIE-funded schools by adopting:
    (1) Challenging academic content standards, and
    (2) Aligned academic achievement standards consistent with 
paragraph (c) of this section.

[[Page 26796]]

    (b) The requirements for academic standards include at least three 
levels of achievement and are hereinafter collectively referred to as 
``challenging academic standards.''
    (c) The academic standards will apply to all BIE-funded schools and 
the students served at those schools unless the standards have been 
waived by a Tribal governing body or school board and a proposal for 
alternative requirements approved.
    (1) The academic standards will include:
    (i) Mathematics;
    (ii) Reading or Language Arts;
    (iii) Science;
    (iv) Tribal civics; and
    (v) Any other subject determined by the Secretary.
    (2) Tribal civics will be phased into the Secretary's requirements 
for assessments and accountability system starting as a school quality 
indicator and revisited as implemented. Assessments and an assessment 
schedule will be developed for Tribal civics at the conclusion of the 
processes described in Sec.  30.103.
    (d) The standards, except Tribal civics, must be aligned to 
entrance requirements for credit-bearing coursework in higher education 
and relevant career and technical education standards.
    (e) This paragraph applies to academic achievement standards for 
students with the most significant cognitive disabilities. The 
Secretary must, through a documented and validated standards-setting 
process, adopt alternate academic achievement standards for students 
with the most significant cognitive disabilities that:
    (1) Are aligned with the challenging BIE academic content standards 
under paragraphs (a) and (b) of this section;
    (2) Promote access to the general education curriculum, consistent 
with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 
1400 et seq.);
    (3) Reflect professional judgment as to the highest possible 
standards achievable by the students;
    (4) Are designated in the individualized education program 
developed under section 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for 
each such student as the academic achievement standards that will be 
used for the student; and
    (5) Are aligned to ensure that a student who meets the alternate 
academic achievement standards is on track to pursue postsecondary 
education or competitive integrated employment, consistent with the 
purposes of the Rehabilitation Act of 1973, as amended by the Workforce 
Innovation and Opportunity Act, as in effect on July 22, 2014.
    (f) The Secretary will adopt English language proficiency standards 
that:
    (1) Are derived from the four (4) recognized domains of speaking, 
listening, reading, and writing;
    (2) Address the different proficiency levels of English learners; 
and
    (3) Are aligned with the BIE's challenging academic standards.


Sec.  30.105  How will the Secretary implement requirements for 
assessments?

    (a) The BIE will implement a set of high quality student academic 
assessments in mathematics, reading or language arts, science, and 
Tribal civics. Tribal civics assessments and an assessment 
administration schedule will be developed at the conclusion of the 
processes described in Sec.  30.103, except that the Secretary will 
phase in the requirement for assessments aligned with the Tribal civics 
standards. The BIE retains the right to implement the assessments in 
any other subject chosen by the BIE.
    (b) The assessment requirements must:
    (1) Except with respect to alternate assessments for students with 
the most significant cognitive disabilities, be:
    (i) The same academic assessments used to measure the achievement 
of all BIE-funded school students; and
    (ii) Administered to all BIE-funded school students, including the 
following highly-mobile student populations:
    (A) Students with status as a migratory child;
    (B) Students with status as a homeless child or youth;
    (C) Students with status as a child in foster care;
    (D) Students with status as a student with a parent who is a member 
of the armed forces on active duty or serves on full-time National 
Guard duty;
    (2) Be aligned with the BIE's challenging academic standards, and 
provide coherent and timely information about student attainment of 
such standards and whether the student is performing at the student's 
grade level;
    (3) Be used for purposes for which such assessments are valid and 
reliable, consistent with relevant, nationally recognized professional 
and technical testing standards; objectively measure academic 
achievement, knowledge, and skills; and use tests that do not evaluate 
or assess personal or family beliefs and attitudes, or publicly 
disclose personally identifiable information, except that this 
provision does not preclude the use of:
    (i) Constructed-response, short answer, or essay questions; or
    (ii) Items that require a student to analyze a passage of text or 
to express opinions;
    (4) Be of adequate technical quality for each purpose required 
under the Act and consistent with the requirements of this section, the 
evidence of which shall be made public, including on the BIE website;
    (5) Be administered:
    (i) In the case of mathematics and reading or language arts:
    (A) In each of grades three (3) through eight (8); and
    (B) At least once in grades nine (9) through twelve (12);
    (ii) In the case of science, not less than one time during:
    (A) Grades three (3) through five (5);
    (B) Grades six (6) through nine (9); and
    (C) Grades ten (10) through twelve (12);
    (iii) In the case of any other subject chosen by the BIE, at the 
discretion of the BIE; and
    (6) Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills, such as critical thinking, reasoning, analysis, complex problem 
solving, effective communication, and understanding of challenging 
content, which may:
    (i) Include valid and reliable measures of student academic growth 
at all achievement levels to help ensure that the assessment results 
could be used to improve student instruction; and
    (ii) Be partially delivered in the form of portfolios, projects, or 
extended performance tasks;
    (7) At the BIE's discretion, be administered through:
    (i) A single summative assessment; or
    (ii) Multiple Bureau-wide interim assessments during the course of 
the academic year that result in a single summative score that provides 
valid, reliable, and transparent information on student achievement or 
growth;
    (8) Produce individual student interpretive, descriptive, and 
diagnostic reports, consistent with paragraph (b)(3) of this section, 
regarding achievement on such assessments that allow parents, teachers, 
principals, and other school leaders to understand and address the 
specific academic needs of students, and that are provided to parents, 
teachers, and school leaders, as soon as is practicable after the 
assessment is given, in an understandable and uniform format, and to 
the extent practicable, in a language that parents can understand;
    (9) Enable results to be disaggregated:

[[Page 26797]]

    (i) Within the Bureau and each BIE-funded school by:
    (A) Each major racial and ethnic group;
    (B) Economically disadvantaged students as compared to students who 
are not economically disadvantaged;
    (C) Children with disabilities as compared to children without 
disabilities;
    (D) English proficiency status;
    (E) Gender;
    (F) Migrant status;
    (G) Status as a homeless child or youth as defined in section 
725(2) of title VII, subtitle B of the McKinney-Vento Homeless 
Assistance Act, as amended;
    (H) Status as a child in foster care; and
    (I) Status as a student with a parent who is a member of the armed 
forces on active duty or serves on full-time National Guard duty.
    (ii) Disaggregation is not required in the cases in which the 
number of students in a subgroup is insufficient to yield statistically 
reliable information or the results would reveal personally 
identifiable information about an individual student.
    (10) Enable itemized score analyses to be produced and reported, 
consistent with paragraph (b)(3) of this section, to BIE-funded 
schools, so that parents, teachers, principals, other school leaders, 
and administrators can interpret and address the specific academic 
needs of students as indicated by the students' achievement on 
assessment items; and
    (11) Be designed and developed:
    (i) To be valid and accessible for use by all students, including 
students with disabilities and English learners; and
    (ii) To the extent practicable, using the principles of universal 
design for learning. For the purposes of this section, ``universal 
design for learning'' means a scientifically valid framework for 
guiding educational practice that:
    (A) Provides flexibility in the ways information is presented, in 
the ways students respond or demonstrate knowledge and skills, and in 
the ways students are engaged; and
    (B) Reduces barriers in instruction, provides appropriate 
accommodations, supports, and challenges, and maintains high 
achievement expectations for all students, including students with 
disabilities and English learners.
    (c) Exception for Advanced Mathematics in Middle School. The BIE 
may exempt any eighth (8th) grade student from the assessment in 
mathematics ordinarily administered in grade eight (8) if:
    (1) The student takes the mathematics assessment required to be 
administered at least once in grades nine (9) through twelve (12);
    (2) The student's performance on the high school assessment is used 
in the year in which the student takes the assessment in mathematics 
ordinarily administered in grade eight (8) for purposes of measuring 
academic achievement in mathematics, and participation in assessments 
is used for purposes of Sec.  30.111(e)(4); and
    (3) In high school, such student takes a mathematics assessment 
required to be administered at least once in grades nine (9) through 
twelve (12) that:
    (i) Is any end-of-course assessment or other assessment that is 
more advanced than the assessment required to be administered at least 
once in grades nine (9) through twelve (12);
    (ii) Shall be used to measure such student's academic achievement 
for purposes of Sec.  30.111(e)(1);
    (iii) Provides for appropriate accommodations; and
    (iv) The student's performance on the more advanced mathematics 
assessment is used for purposes of measuring academic achievement under 
Sec.  30.111(e) and participation in assessments under Sec.  30.111(g).
    (4) The BIE will describe in its Standards, Assessments, and 
Accountability Plan, with regard to this exception, its strategies to 
provide all students at BIE-funded schools the opportunity to be 
prepared for and to take advanced mathematics coursework in middle 
school.
    (d) Adaptive Assessments. (1) BIE retains the right to develop and 
administer computer adaptive assessments as the assessments described 
in this section, provided the computer adaptive assessments meet the 
requirements of this section, except that:
    (i) The requirement that the same academic assessments must be used 
to measure the achievement of all BIE-funded school students and that 
the assessments must be administered to all BIE-funded school students 
may not be interpreted to require that all students taking the computer 
adaptive assessment be administered the same assessment items; and
    (ii) Such assessment:
    (A) Must measure, at a minimum, each student's academic proficiency 
based on the BIE's challenging academic standards for the student's 
grade level and growth toward such standards; and
    (B) May measure the student's level of academic proficiency and 
growth using items above or below the student's grade level, including 
for use as part of the BIE's accountability system.
    (2) In developing and administering computer adaptive assessments 
for students with the significant cognitive disabilities and English 
learners:
    (i) The BIE will ensure that the computer adaptive assessments for 
students with the most significant cognitive disabilities:
    (A) Assess a student's academic achievement based on the 
challenging academic content standards for the grade in which the 
student is enrolled;
    (B) Meet the requirements of this section and Sec. Sec.  30.106 
through 30.110, including Sec.  30.108, except the assessments are not 
required to meet the requirements of Sec.  30.108(a)(4); and
    (C) Assess the student's academic achievement to measure, in the 
subject being assessed, whether the student is performing at the 
student's grade level; and
    (ii) The BIE will ensure that computer adaptive assessments for 
English learners:
    (A) Meet the requirements Sec. Sec.  30.106 through 30.110, 
including Sec.  30.108, except the assessments are not required to meet 
the requirements of Sec.  30.108(a)(4); and
    (B) Assess the student's English language proficiency, which may 
include growth towards such proficiency, in order to measure the 
student's acquisition of English.
    (e) All required BIE assessments must undergo peer review to ensure 
that the assessments meet all applicable requirements.
    (f) Rule of Construction on Parental Rights. Nothing in this 
section may be construed as preempting Tribal law at a Tribally 
controlled school regarding the decision of a parent to not have the 
parent's child participate in the academic assessments under this 
paragraph.
    (g) Limitation on Assessment Time. The Secretary may set a target 
limit on the aggregate amount of time devoted to the administration of 
assessments for each grade, expressed as a percentage of annual 
instructional hours.


Sec.  30.106  How will the Secretary provide for the inclusion of all 
students in assessments?

    Assessments must provide for:
    (a) The participation of all students;
    (b) The participation of students with disabilities, as detailed in 
Sec.  30.107 and Sec.  30.108; and
    (c) The participation of English learners, as detailed in Sec.  
30.109.


Sec.  30.107  How will the Secretary include students with disabilities 
in assessments?

    (a) The Secretary must include students with disabilities in all 
assessments, with appropriate accommodations. For purposes of this

[[Page 26798]]

section, students with disabilities, collectively, are:
    (1) All children with disabilities as defined under section 602(3) 
of the IDEA;
    (2) Students with the most significant cognitive disabilities who 
are identified from among the students in paragraph (a)(1) of this 
section; and
    (3) Students with disabilities covered under other acts, including:
    (i) Section 504 of the Rehabilitation Act of 1973, as amended; and
    (ii) Title II of the Americans with Disabilities Act (ADA), as 
amended.
    (b) Alignment of assessments. (1) Except as provided below, a 
student with a disability must be assessed with an assessment aligned 
with the BIE's challenging academic standards for the grade in which 
the student is enrolled.
    (2) A student with the most significant cognitive disabilities may 
be assessed with:
    (i) The general assessment under Sec.  30.106(b); or
    (ii) The alternate assessment under Sec.  30.108 aligned with the 
BIE's challenging academic content standards for the grade in which the 
student is enrolled and the BIE's alternate academic achievement 
standards.
    (c) The BIE must ensure that students with disabilities have the 
appropriate accommodations, such as interoperability with, and ability 
to use, assistive technology, for students with disabilities, including 
students with the most significant cognitive disabilities, necessary to 
measure the academic achievement of such children relative to the BIE's 
challenging academic standards or alternate academic achievement 
standards described in Sec.  30.104(d) and Sec.  30.104(e).
    (d) The BIE must ensure that general and special education 
teachers, paraprofessionals, teachers of English learners, specialized 
instructional support personnel, and other appropriate staff receive 
necessary training to administer assessments and know how to administer 
assessments, including, as necessary, alternate assessments, and know 
how to make use of appropriate accommodations during assessment for all 
students with disabilities, consistent with section 
1111(b)(2)(B)(vii)(III) of the Act.
    (e) The BIE must ensure that the use of appropriate accommodations 
under paragraph (c) of this section does not deny a student with a 
disability:
    (1) The opportunity to participate in the assessment; and
    (2) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities.


Sec.  30.108   How will the Secretary provide for alternative 
assessments for students with the most significant cognitive 
difficulties?

    (a) Alternative assessments aligned with alternate academic 
achievement standards. The BIE will provide for alternate assessments 
aligned with the BIE's challenging academic content standards and 
alternate academic achievement standards described in Sec.  30.104(d) 
and Sec.  30.104(e) for students with the most significant cognitive 
disabilities. The BIE must:
    (1) Consistent with paragraph (b) of this section, ensure that, for 
each subject, the total number of students assessed in the subject 
using the alternate assessments does not exceed one (1) percent of the 
total number of all students in the BIE-funded school system who are 
assessed in the subject;
    (2) With regard to the percentage of students assessed under this 
paragraph:
    (i) Not prohibit a BIE-funded school from assessing more than one 
(1) percent of its assessed students in any subject for which 
assessments are administered with an alternate assessment aligned with 
alternate academic achievement standards;
    (ii) Require that a BIE-funded school submit information justifying 
the need of the BIE-funded school to assess more than one (1) percent 
of its assessed students in any such subject with such an alternate 
assessment;
    (iii) Provide appropriate oversight of a BIE-funded school that is 
required to submit information to the BIE; and
    (iv) Make the information submitted by a BIE-funded school under 
paragraph (a)(2)(ii) of this section publicly available, provided that 
such information does not reveal personally identifiable information 
about an individual student.
    (3) With regard to Individual Education Plan (IEP) teams:
    (i) Establish, consistent with section 612(a)(16)(C) of the IDEA, 
and monitor implementation of clear and appropriate guidelines for IEP 
teams to apply in determining, on a case-by-case basis, which students 
with the most significant cognitive disabilities will be assessed based 
on alternate academic achievement standards. Such guidelines must 
include a BIE definition of ``students with the most significant 
cognitive disabilities'' that addresses factors related to cognitive 
functioning and adaptive behavior, such that:
    (A) The identification of a student as having a particular 
disability as defined in the IDEA or as an English learner does not 
determine whether a student is a student with the most significant 
cognitive disabilities;
    (B) A student with the most significant cognitive disabilities is 
not identified solely on the basis of the student's previous low 
academic achievement, or the student's previous need for accommodations 
to participate in general BIE assessments; and
    (C) A student is identified as having the most significant 
cognitive disabilities because the student requires extensive, direct 
individualized instruction and substantial supports to achieve 
measurable gains on the BIE's challenging academic content standards 
for the grade in which the student is enrolled;
    (ii) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of BIE and BIE-funded school policies on a student's 
education resulting from taking an alternate assessment aligned with 
alternate academic achievement standards, such as how participation in 
such assessments may delay or otherwise affect the student from 
completing the requirements for a regular high school diploma.
    (4) Ensure that the parents of such students are clearly informed, 
as part of the process for developing the individualized education 
program (as defined in section 614(d)(1)(A) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1414(d)(1)(A))):
    (i) That their child's academic achievement will be measured based 
on the alternate standards; and
    (ii) How participation in the assessments may delay or otherwise 
affect the student from completing the requirements for a regular high 
school diploma;
    (5) Promote, consistent with the IDEA (20 U.S.C. 1400 et seq.), the 
involvement and progress of students with the most significant 
cognitive disabilities in the general education curriculum;
    (6) Describe the steps the Bureau has taken to incorporate 
universal design for learning, to the extent feasible, in alternate 
assessments;
    (7) Describe that general and special education teachers, and other 
appropriate staff:
    (i) Know how to administer the alternate assessments; and
    (ii) Make appropriate use of accommodations for students with 
disabilities on all assessments required under this paragraph;
    (8) Develop, disseminate information on, and promote the use of 
appropriate accommodations to increase the number

[[Page 26799]]

of students with significant cognitive disabilities:
    (i) Participating in academic instruction and assessments for the 
grade level in which the student is enrolled; and
    (ii) Who are tested based on the BIE's challenging academic 
standards for the grade level in which the student is enrolled; and
    (9) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment based on alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma.
    (b) Responsibility under IDEA. Subject to the authority and 
requirements for the IEP team for a child with a disability under 
section 614(d)(1)(A)(i)(VI)(bb) of the Individuals with Disabilities 
Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VI)(bb)), such team, 
consistent with the guidelines established by the BIE and required 
under section 612(a)(16)(C) of such Act (20 U.S.C. 1412(c)(16)(C)) and 
paragraph (a)(1) of this section, will determine when a child with a 
significant cognitive disability shall participate in an alternate 
assessment aligned with the alternate academic achievement standards.


Sec.  30.109   How will the Secretary include English learners in 
content assessments?

    (a) English learners. English learners must be:
    (1) Assessed in a valid and reliable manner; and
    (2) Provided appropriate accommodations on assessments administered 
under this paragraph, including, to the extent practicable, assessments 
in the language and form most likely to yield accurate data on what the 
students know and can do in academic content areas, until the students 
have achieved English language proficiency, consistent with 
standardized BIE-determined exit procedures.
    (b) Language or form of assessment. Notwithstanding paragraph 
(a)(2) of this section, BIE-funded schools must provide for assessments 
(using tests in English) of reading or language arts of any student who 
has attended school in the United States for three (3) or more 
consecutive school years, except that if the BIE-funded school 
determines, on a case-by-case individual basis, that academic 
assessments in another language or form would likely yield more 
accurate and reliable information on what the student knows and can do, 
the BIE-funded school may make a determination to assess the student in 
the appropriate language other than English for a period that does not 
exceed two (2) additional consecutive years, provided that the student 
has not yet reached a level of English language proficiency sufficient 
to yield valid and reliable information on what the student knows and 
can do on tests (written in English) of reading or language arts. This 
requirement does not permit either the BIE or BIE-funded schools to 
exempt English learners from participating in the BIE's assessment 
system.
    (c) BIE responsibilities. The BIE must:
    (1) Disseminate information and resources regarding English 
learners to, at a minimum, BIE-funded schools, and parents; and
    (2) Promote the use of accommodations for English learners to 
ensure that all English learners are able to participate in academic 
instruction and assessments.
    (d) Exception for recently arrived English learners. With respect 
to recently arrived English learners who have been enrolled in a school 
in one of the 50 States in the United States or the District of 
Columbia for less than twelve (12) months, the BIE may choose to:
    (1) Exclude:
    (i) The English learner from one administration of the reading or 
language arts assessment required under Sec.  30.105; and
    (ii) The English learner's results on any of the assessments 
required under Sec.  30.105(b)(5)(i) or Sec.  30.110 for the first year 
of the English learner's enrollment in the school for the purposes of 
the BIE-determined accountability system under Sec.  30.111; or
    (2) Or the BIE may choose to:
    (i) Assess, and report the performance of, the English learner on 
the reading or language arts and mathematics assessments required under 
Sec.  30.105(b)(5)(i) in each year of the student's enrollment in such 
a school; and
    (ii) For the purposes of the BIE-determined accountability system:
    (A) For the first year of the student's enrollment in the school, 
exclude the results on the assessments described in paragraph (d)(1)(i) 
of this section;
    (B) Include a measure of student growth on the assessments 
described in paragraph (d)(1)(i) of this section in the second year of 
the student's enrollment in the school; and
    (C) Include proficiency on the assessments described in paragraph 
(c) of this section in the third year of the student's enrollment in 
such a school, and each succeeding year of enrollment.
    (e) English learner subgroup. With respect to a student previously 
identified as an English learner and for not more than four (4) years 
after the student ceases to be identified as an English learner, the 
BIE may include the results of the student's academic content 
assessments within the English learner subgroup of the subgroups of 
students (as defined in Sec.  30.101) for the purposes of the BIE-
determined accountability system.


Sec.  30.110   How will the Secretary ensure BIE-funded schools will 
provide for annual assessments of English language proficiency for 
English learners?

    (a) The BIE will ensure that BIE-funded schools will provide for an 
annual assessment of English proficiency of all English learners in the 
schools served by the BIE.
    (b) The BIE will require BIE-funded schools to use the assessments 
to assess annually the English language proficiency, including reading, 
writing, speaking, and listening skills, of all English learners in 
kindergarten through grade twelve (12).
    (c) The English language proficiency assessment must be aligned 
with the BIE's English language proficiency standards described in 
Sec.  30.104(f).
    (d) The assessments will be implemented, developed, and used 
consistent with the requirements of this section.
    (e) The assessments will provide coherent and timely information 
about each student's attainment of the BIE's English language 
proficiency standards to parents.
    (f) If an English learner has a disability that precludes 
assessment of the student in one or more domains of the English 
language proficiency assessment such that there are no appropriate 
accommodations for the affected domain(s) (e.g., a non-verbal English 
learner who because of an identified disability cannot take the 
speaking portion of the assessment), as determined, on an 
individualized basis, by the student's IEP team, 504 team, or by the 
individual or team designated by the BIE-funded school to make these 
decisions under title II of the ADA, then the BIE must assess the 
student's English language proficiency based on the remaining domains 
in which it is possible to assess the student.
    (g) The BIE must provide for an alternate English language 
proficiency assessment for each English learner covered under this 
section who cannot participate in the assessment under this paragraph 
even with appropriate accommodations.

[[Page 26800]]

Sec.  30.111   How will the Secretary implement requirements for 
accountability system?

    (a) The Secretary will define accountability system for BIE-funded 
schools consistent with this section and subpart C, including 
provisions for a single Bureau-wide accountability system and school 
support and improvement activities, taking into account the unique 
circumstances and needs of BIE-funded schools and the students served 
by BIE-funded schools.
    (b) To improve student academic achievement and school success 
among all elementary and secondary schools within the BIE-funded school 
system, the Secretary will develop and implement a single, Bureau-wide 
accountability system in consultation with Tribes and stakeholders 
(parents, educators, etc.) that:
    (1) Is based on the Bureau's challenging academic standards and 
academic assessments;
    (2) Is informed by ambitious long-term goals and measurements of 
interim progress;
    (3) Includes all of the accountability indicators described 
paragraph (f) of this section;
    (4) Takes into account the achievement of all elementary and 
secondary school students within the BIE-funded school system;
    (5) Is the same accountability system used to annually, 
meaningfully differentiate all schools within the BIE-funded school 
system and the same accountability system used to identify schools for 
comprehensive and targeted support and improvement;
    (6) Includes the process that the Bureau will use to ensure 
effective development and implementation of school support and 
improvement plans, including evidence-based interventions, to hold all 
schools within the BIE-funded school system accountable for student 
academic achievement and school success; and
    (7) Will be reviewed in consultation with Tribes and stakeholders 
for continuous improvements as necessary, but not less often than every 
four (4) years beginning on the date the plan is implemented.
    (c) The Secretary will incorporate science in the accountability 
system.
    (d) Tribal civics will be phased into the Secretary's requirements 
for accountability system starting as a school quality indicator and 
will be revisited as the accountability system is implemented.
    (e) For all students and separately for each subgroup of students 
within the BIE-funded school system, the Bureau's long-term goals and 
measurements of interim progress will:
    (1) Include, at a minimum, improved academic achievement, as 
measured by proficiency on the Bureau's annual assessments in 
mathematics and reading or language arts under Sec.  30.105(b)(5)(i), 
and high school graduation rates, including the four-year adjusted 
cohort graduation rate and the extended-year adjusted cohort graduation 
rate, except that the Secretary will set a more rigorous long-term goal 
for the graduation rate as compared to the long-term goal set for the 
four-year adjusted cohort graduation rate;
    (2) Have the same multi-year length of time set to meet goals for 
all students and for each subgroup of students within the BIE-funded 
school system;
    (3) Take into account, for subgroups of students who are behind on 
the measurements of academic achievement and high school graduations 
rates, the improvement necessary to make significant progress in 
closing Bureau-wide proficiency and graduation rate gaps; and
    (4) Include a measurement of increases in the percentage of English 
learner students making progress in achieving English language 
proficiency as defined by the Secretary and measured by the assessments 
under Sec.  30.105(f) within a timeline determined by the Secretary.
    (f) For all students and separately for each subgroup of students 
within the BIE-funded school system, the Bureau's accountability 
indicators will at a minimum include distinct indicators for each 
school that, except for the English language proficiency indicator, 
will:
    (1) Measure performance for all students and separately for each 
subgroup of students;
    (2) Use the same measures within each indicator for all schools 
within the BIE-funded school system except that measures within the 
Academic Progress and School Quality or Student success indicators may 
vary by each grade span; and
    (3) Incorporate an Academic Achievement indicator, an Academic 
Progress indicator, a Graduation rate indicator, a Progress in 
Achieving English Language Proficiency indicator, and one or more 
indicators of School Quality or Student Success.
    (g) The Bureau's accountability system will annually measure the 
achievement of at least ninety-five (95) percent of all students, and 
ninety-five (95) percent of each subgroup of students, who are enrolled 
in schools within the BIE-funded school system on the Bureau's 
assessments. The denominator for the purpose of measuring, calculating, 
and reporting on each indicator shall be the greater of:
    (1) Ninety-five (95) percent of all students, or ninety-five (95) 
percent of each subgroup of students; or
    (2) The number of students participating in the assessments.
    (h) The performance of students that have not attended the same 
BIE-funded school for at least half of a school year will not be used 
in the system of meaningful differentiation of school for that school 
year, but will be used for the purpose of reporting on the Bureau and 
school report cards for that school year. In calculating the high 
school graduation rate, a high school student who has not attended the 
same school for at least half of a school year and has exited high 
school without a regular high school diploma and without transferring 
to another high school that grants a regular high school diploma during 
such a school year will be assigned to the high school at which the 
student was enrolled for the greatest proportion of school days while 
enrolled in grades nine (9) through twelve (12), or to the high school 
in which the student was most recently enrolled.

Subpart B--Waiver of Requirements, Technical Assistance, and 
Approval of Proposals for Alternative Requirements


Sec.  30.112   May a Tribal governing body or school board waive the 
Secretary's requirements for standards, assessments, and accountability 
system?

    Yes. A Tribal governing body or school board may waive the 
Secretary's requirements for standards, assessments, and accountability 
system in part or in whole, and the Tribal governing body or school 
board's alternative will apply if approved by the Secretary. If the 
Secretary does not approve the Tribal governing body or school board's 
alternative proposal, the Secretary's requirements apply.


Sec.  30.113   How does a Tribal governing body or school board waive 
the Secretary's requirements?

    (a) A Tribal governing body or school board may waive the 
Secretary's requirements for standards, assessments, and accountability 
system, in part or in whole.
    (b) The Tribal governing body or school board must notify the 
Secretary and the Secretary of Education of the decision to waive the 
Secretary's requirements in part or in whole.
    (c) Within sixty (60) days of the decision to waive the Secretary's 
requirements in part or in whole, the Tribal governing body or school 
board must submit to the Secretary for review, and in coordination with 
the Secretary

[[Page 26801]]

of Education, approval, a proposal for alternative requirements that 
are consistent with section 1111 of the Act and that take into account 
the unique circumstances and needs of the school or schools and the 
students served. The Secretary encourages a Tribal governing body or 
school board to request and receive technical assistance, consistent 
with Sec.  30.115, well in advance of submission of a plan to the 
Secretary for review. The Tribal governing body or school board must 
continue to follow the Secretary's requirements for standards, 
assessments and accountability system until a proposal for alternative 
requirements has been approved and until alternative requirements 
become effective, except in the case described in paragraph (g) of this 
section.
    (d) A Tribal governing body or school board may request an 
extension of the sixty (60) day deadline for the provision of technical 
assistance.
    (e) A Tribal governing body or school board must use this process 
anytime a Tribal governing body or school board proposes alternative 
requirements for standards, assessments, and accountability system, or 
proposes changes to approved alternative requirements.
    (f) The Secretary will work with the Secretary of Education to 
develop and make available templates for plans for alternative 
requirements that Tribal governing bodies and school boards may use to 
assist in the development of such proposals for alternative 
requirements.
    (g) During the transition to the Secretary's requirements for 
standards and assessments under this part, or at any time thereafter, a 
Tribal governing body or school board may elect to use the standards 
and assessments of a State without submitting such standards and 
assessments for approval as an alternative proposal under paragraph (c) 
of this section, provided that the Tribal governing body or school 
board notifies the Secretary of the intention to use the State 
standards and assessments and the State agrees to allow the use of its 
standards and assessments.


Sec.  30.114   What should a Tribal governing body or school board 
include in an alternative proposal?

    Alternative plans must include an explanation of how the 
alternative proposal meets the requirements of section 1111 of the Act, 
taking into consideration the unique circumstances and needs of BIE-
funded schools and the students served at such schools.


Sec.  30.115   May proposed alternative requirements use parts of the 
Secretary's requirements?

    Yes, a Tribal governing body or school board may use the 
Secretary's requirements in part or in whole. Alternative proposals 
must clearly identify any retained portions of the Secretary's 
requirements.


Sec.  30.116   Will the Secretary provide technical assistance to 
Tribal governing bodies or school boards seeking to develop alternative 
requirements?

    The Secretary and the Secretary of Education are required by 
statute to provide technical assistance, upon request, either directly 
or through contract, to a Tribal governing body or a school board that 
seeks to develop alternative requirements. A Tribal governing body or 
school board seeking such assistance must submit a request to the 
Director. The Secretary will provide such technical assistance on an 
ongoing and timely basis.


Sec.  30.117   What is the process for requesting technical assistance?

    (a) Requests for technical assistance must be in writing from a 
Tribal governing body or school board to the Director of BIE.
    (b) The Director, or designee, will acknowledge receipt of a 
request for technical assistance.
    (c) No later than thirty (30) days after receiving the original 
request, the Director will identify a point of contact and begin the 
process of providing technical assistance. The Director and requesting 
Tribal governing body or school board will work together to identify 
the form, substance, and timeline for the assistance.


Sec.  30.118   When should the Tribal governing body or school board 
request technical assistance?

    A Tribal governing body or school board may request technical 
assistance at any time. A Tribal governing body or school board is 
welcomed and encouraged to request technical assistance before formally 
notifying the Secretary of its intention to waive the requirements 
established by the Secretary in order to maximize the time available 
for technical assistance.


Sec.  30.119  How does the Secretary review and approve alternative 
requirements?

    (a) The Secretary and the Secretary of Education will jointly 
approve plans for alternative requirements for standards, assessments, 
and accountability system or determine that the proposed alternative 
requirements do not meet the requirements of section 1111 of the Act.
    (1) The Secretary will consult with the Secretary of Education 
through the review of a proposal for alternative requirements.
    (2) Upon receipt of a proposal for alternative requirements for 
standards, assessments, and accountability system, in part or in whole, 
the Secretary will begin coordination with the Secretary of Education 
on review and approval of the proposal.
    (3) The Secretary will provide a status update regarding the 
processing of the proposal within 120 days of receipt of the proposal 
and every thirty (30) days thereafter to discuss the stage of the 
review process.
    (b) If the Secretary and the Secretary of Education approve a 
proposal for alternative requirements, the Secretary will:
    (1) Promptly notify the Tribal governing body or school board; and
    (2) Indicate the date for which the alternative proposal will be 
effective.
    (c) If a proposal for alternative requirements is not approved, the 
Tribal governing body or school board will be notified that:
    (1) The proposal has not been approved; and
    (2) The reasons why the alternative proposal was not approved.
    (d) If a proposal for alternative requirements is not approved, the 
Secretary will provide technical assistance to the Tribal governing 
body or school board to help to overcome the reasons why the 
alternative proposal was not approved.
    (e) If a proposal for alternative requirements is not approved, or 
is not moving forward, then Tribes may individually request formal 
consultation with the Secretary and Secretary of Education.

Subpart C--Support and Improvement


Sec.  30.120   How will the Secretary implement school support and 
improvement activities?

    The Secretary will notify each BIE-funded school that has been 
identified for comprehensive support and improvement.


Sec.  30.121   How will the Secretary implement comprehensive support 
and improvement?

    (a) Once notified that it has been identified for comprehensive 
support and improvement, each BIE-funded school is required to develop 
and implement, in partnership with stakeholders (including principals 
and other school leaders, teachers, and parents), a comprehensive 
support and improvement plan to improve student outcomes consistent 
with the Act. The comprehensive support and improvement plan must be 
approved by the school and the BIE. Once approved

[[Page 26802]]

and implemented, the comprehensive support and improvement plan will be 
monitored and periodically reviewed by the BIE.
    (b) In regards to high schools that have been identified as having 
failed to graduate one-third or more of their students, the BIE may:
    (1) Permit differentiated improvement activities that use evidence-
based interventions in the case of a school that predominantly serves 
students:
    (i) Returning to education after having exited secondary school 
without a regular high school diploma, or
    (ii) Who, based on their grade or age, are significantly off track 
to accumulate sufficient academic credits to meet high school 
graduation requirements; and
    (2) In the case of a school that has a total enrollment of fewer 
than 100 students, permit the BIE-funded school to forego 
implementation of improvement activities.


Sec.  30.122   How will the Secretary implement targeted support and 
improvement?

    (a) Using the system of annual meaningful differentiation of 
schools, the Secretary will notify each BIE-funded school in which any 
subgroup of students is consistently underperforming.
    (b) Each school that has been notified must develop and implement, 
in partnership with stakeholders (including principals and other school 
leaders, teachers, and parents), a school-level targeted support and 
improvement plan to improve student outcomes based on the BIE's 
indicators for each subgroup of students that was the subject of such 
notification consistent with the Act. Targeted support and improvement 
plans must include evidence-based interventions, will be approved by 
the BIE prior to implementation, and will be monitored by the BIE upon 
submission and implementation. Targeted support and improvement plans 
must result in additional action following unsuccessful implementation 
of the plan after a number of years as determined by the BIE.


Sec.  30.123   How will the Secretary implement additional targeted 
support?

    Where a school would be identified for comprehensive support and 
improvement because, for any subgroup, it is within the lowest-
performing five (5) percent of all schools in the BIE system using the 
BIE's system of annual meaningful differentiation of schools, a school-
level targeted support and improvement plan must also identify resource 
inequities (which may include a review of BIE-funded school level 
budgeting), to be addressed through implementation of the plan.


Sec.  30.124   How will the Secretary implement continued support for 
Bureau-funded schools and school improvement?

    (a) The Secretary will establish exit criteria for:
    (1) Schools identified for comprehensive support and improvement, 
which, if not satisfied within a BIE-determined number of years (not to 
exceed four (4) years), will result in more rigorous BIE-determined 
action, such as implementation of interventions (which may include 
addressing school-level operations); and
    (2) Schools identified for additional targeted support.
    (b) The Secretary will also periodically review resource allocation 
to support school improvement.

Subpart D--Responsibilities and Accountability


Sec.  30.125   What is required for the Bureau to meet its reporting 
responsibilities?

    The Bureau is required to prepare and disseminate widely to the 
public an annual report card for the BIE-funded school system as a 
whole, and also report cards for individual BIE-funded schools, 
consistent with the requirements of section 1111(h) of the Act. The 
BIE's annual report card will be made available on the internet along 
with all BIE-funded school report cards.


Sec.  30.126   What information collections have been approved?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-NEW. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB Control Number.

    Dated: May 31, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-12096 Filed 6-7-19; 8:45 am]
 BILLING CODE 4337-15-P