[Federal Register Volume 85, Number 39 (Thursday, February 27, 2020)]
[Proposed Rules]
[Pages 11322-11329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03762]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2019-OESE-0142]


Proposed Priorities, Requirements, Definitions, and Selection 
Criteria--Indian Education Discretionary Grants Programs--Native 
American Language ([email protected]) Program

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

ACTION: Proposed priorities, requirements, definitions, and selection 
criteria.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
proposes priorities, requirements, definitions, and selection criteria 
for the Native American Language ([email protected]) program, Catalog of Federal 
Domestic Assistance (CFDA) number 84.415B. We may use one or more of 
these priorities, requirements, definitions, and selection criteria for 
competitions in fiscal year (FY) 2020 and later years. We take this 
action to support the development, improvement, expansion, or 
maintenance of programs that support elementary or secondary schools in 
using Native American and Alaska Native languages as the primary 
language of instruction.

DATES: We must receive your comments on or before March 30, 2020.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Help.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments, address them to Tanya Tullos, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W234, 
Washington, DC 20202-5970.

    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov.

    Therefore, commenters should be careful to include in their 
comments only information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT: Angela Hernandez-Marshall, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W113, 
Washington, DC 20202. Telephone: (202) 205-1909. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Invitation to Comment: We invite you to submit comments regarding 
the proposed priorities, requirements, definitions, and selection 
criteria. To ensure that your comments have maximum effect in 
developing the notice of final priorities, requirements, definitions, 
and selection criteria, we urge you to identify clearly the proposed 
priority, requirement, definition, or selection criterion that each 
comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 13771 and their 
overall requirement of reducing regulatory burden that might result 
from these proposed priorities, requirements, definitions, and 
selection criteria. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of this program.
    During and after the comment period, you may inspect all public 
comments about the proposed priorities, requirements, definitions, and 
selection criteria by accessing Regulations.gov. You may also inspect 
the comments in person at 400 Maryland Avenue SW, Washington, DC, 
between the hours of 9:30 a.m. and 4:00 p.m., Eastern Time, Monday 
through Friday of each week except Federal holidays.
    Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for the proposed priorities, requirements, 
definitions, and selection criteria. If you want to schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Purpose of Program: The purposes of this program are to (1) support 
schools that use Native American and Alaska Native languages as the 
primary language of instruction; (2) maintain, protect, and promote the 
rights and freedom of Native Americans and Alaska Natives to use, 
practice, maintain, and revitalize their languages, as envisioned in 
the Native American Languages Act of 1990 (25 U.S.C. 2901 et seq.); and 
(3) support the Nation's First Peoples' efforts to maintain and 
revitalize their languages and cultures,

[[Page 11323]]

and to improve educational opportunities and student outcomes within 
Native American and Alaska Native communities.
    Program Authority: Section 6133 of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA) (20 U.S.C. 7453).
    Background: The [email protected] program was first authorized in late 2015 by 
the Every Student Succeeds Act, which also reauthorized the ESEA. For 
the first [email protected] competition, held in FY 2017, we waived notice-and-
comment rulemaking, as permitted under section 437(d)(1) of the General 
Education Provisions Act, to establish priorities, definitions, and 
requirements consistent with the statute, after holding Tribal 
consultations in order to gather feedback about how the new program 
should be implemented. We published the notice inviting applications 
(NIA) for the FY 2017 competition on May 4, 2017 (82 FR 20869). We 
propose in this document to retain some of the definitions and 
requirements from the FY 2017 competition. Note that the terms ``Native 
American'' and ``Native American language'' are defined in the statute 
to include Alaska Native people and languages. Thus, in this document 
when we use the term ``Native American'' it includes Alaska Natives.
    Under section 6133(b)(2) of the ESEA, any of the following entities 
that has a plan to develop and maintain, or to improve and expand, 
programs that support the entity's use of a Native American or Alaska 
Native language as the primary language of instruction in elementary 
schools or secondary schools, or both, is eligible for grants under the 
[email protected] program:
    (a) An Indian Tribe.
    (b) A Tribal College or University (TCU).
    (c) A Tribal education agency.
    (d) A local educational agency (LEA), including a public charter 
school that is an LEA under State law.
    (e) A school operated by the Bureau of Indian Education (BIE).
    (f) An Alaska Native Regional Corporation (as described in section 
3(g) of the Alaska Native Claims Settlement Act (43 U.S.C. 1602(g))).
    (g) A private, Tribal, or Alaska Native nonprofit organization.
    (h) A non-Tribal for-profit organization.
    In this document, the Assistant Secretary proposes four priorities 
as well as definitions, requirements, and selection criteria for this 
program to clarify new and existing requirements and to govern future 
grant competitions. The proposed definitions and one of the proposed 
priorities in this document are the same as those used in the FY 2017 
competition, but three of the four proposed priorities, the proposed 
requirements, and all but three proposed selection factors in this 
document are new. Additionally, one statutory requirement calls on the 
Department to ensure that a diversity in languages exists among funded 
applicants. The Explanatory Statement to the Department of Education 
Appropriations Act, 2020, further emphasized Congress's interest in 
ensuring this program supports the most extensive possible geographical 
distribution and language diversity. To adhere to the statutory 
requirement and respond to the Explanatory Statement, the Department 
will take steps to minimize the dominance of one language represented 
among funded awards, and we are specifically asking for public input on 
how best to implement this requirement.
    We note that there are some statutory definitions that will govern 
future [email protected] competitions. For ease of reference and so that the 
public is able to understand the definitions that will govern the 
competition and program, we have included those that are most relevant 
to [email protected] applicants and grantees in this notice of proposed 
priorities, requirements, definitions, and selection criteria (NPP), 
but we are not seeking public comment on those provisions.
    Tribal Consultation: Prior to developing these proposed priorities, 
requirements, definitions, and selection criteria, the Department held 
a Tribal consultation on April 4, 2019, in Traverse City, Michigan. The 
consultation was also accessible online through a webinar. The 
Department announced this Tribal consultation through its external 
stakeholder listserv that includes Tribal leaders, Tribal educational 
agencies, Tribal organizations, Office of Indian Education 
discretionary and formula grantees, and national organizations 
representing Tribal communities.
    The Department sought feedback from Tribal officials on the program 
broadly and on a series of topics. First, the Department sought 
feedback on potential priorities that would govern future [email protected] 
competitions, including priorities for different types of applicants 
such as: Applicants proposing new Native American language programs, 
applicants proposing to expand existing programs, applicants 
representing State-funded programs, and applicants representing 
Tribally-funded programs. Noting that these different types of 
applicants would have different levels of capacity to implement Native 
American language programs, participants expressed support for 
establishing separate priorities for new programs versus existing 
programs. However, almost no participants expressed support for 
establishing separate priorities for State-funded versus Tribally-
funded schools, and one participant commented that some Tribally-funded 
schools also operate under State-funded structures and may not be 
categorized as one or the other, potentially creating confusion.
    The Department also solicited feedback from Tribal officials on 
several potential requirements that apply to [email protected] First, the 
Department sought feedback on how to implement the statutory 
requirement in section 6133(d) of the ESEA to ensure a diversity in 
languages among grantees. Several participants commented that diversity 
of languages should be considered based on language dialect, and not on 
language family alone, given the vast number of Tribes that may be part 
of any one language family. The Department also asked for input on how 
to ensure that applicants had sufficient levels of cooperation among 
their proposed partners. Noting the importance of a strong partnership 
to a successful project, nearly all participants expressed support for 
requiring a memorandum of agreement that describes explicit roles and 
responsibilities of each partner. The Department also sought feedback 
on whether [email protected] grantees should be required to administer Native 
American language proficiency assessments, as well as whether grantees 
should be encouraged to develop Native American language content 
assessments.

Proposed Priorities

    Background: We propose Proposed Priority 1, develop and maintain 
new Native American language programs, and Proposed Priority 2, expand 
and improve existing programs, due to their alignment with the 
legislative purpose to support both types of programs, and because 
during Tribal consultation, Tribal leaders and their designees 
expressed strong support for funding opportunities for both existing 
programs and new programs. A program would be considered a new program 
if it has been in place for not more than three years prior to the time 
of application, since a program in place for less than three years 
would likely require more than just expansion and improvement, but also 
development activities. Consistent with the Explanatory Statement to 
the Department of Education Appropriations Act, 2020, the Department 
will give the same

[[Page 11324]]

consideration to applicants that propose to provide partial immersion 
schools and programs as to full immersion, as the local Tribes, 
schools, and other applicants know best what type of program will most 
effectively assist their youth to succeed.
    Proposed Priority 3, supporting project sustainability through the 
use of title VI formula grant funds, was used in the FY 2017 
competition. Tribal leaders supported this priority, and we believe it 
would increase the likelihood that grantees leverage other Department 
funding streams that share the same legislative intent of promoting 
Native language and culture.
    Finally, Proposed Priority 4, preference for Indian applicants, 
expands on section 6143 of the ESEA, which calls for preference for 
certain Indian entities, by including BIE schools among the entities 
granted a preference. In addition, Proposed Priority 4 uses the term 
``Tribal College or University (TCU),'' as defined in the ESEA, rather 
than ``Indian institution of higher education.'' As a result, Proposed 
Priority 4 would provide a more expansive ``Indian preference'' and 
ensure greater consistency with the program's statutory list of 
eligible entities.

Proposed Priority 1--Develop and Maintain New Native American Language 
Programs

    To meet this priority, an applicant must propose to develop and 
maintain a Native American language instructional program that--
    (a) Will support Native American language education and development 
for Native American students, as well as provide professional 
development for teachers and, as appropriate, staff and administrators, 
to strengthen the overall language and academic goals of the school 
that will be served by the project;
    (b) Will take place in a school; and
    (c) Does not augment or replace a program of identical scope that 
was active within the last three years at the school(s) to be served.

Proposed Priority 2--Expand and Improve Existing Native American 
Language Programs

    To meet this priority, an applicant must propose to improve and 
expand a Native American language instructional program that--
    (a) Will improve and expand Native American language education and 
development for Native American students, as well as provide 
professional development for teachers and, as appropriate, staff and 
administrators, to strengthen the overall language and academic goals 
of the school that will be served by the project;
    (b) Will continue to take place in a school; and
    (c) Is currently offered at the school(s) to be served.

Proposed Priority 3--Support Project Sustainability With Title VI 
Indian Formula Grant Funds

    To meet this priority, an applicant or a partner must receive, or 
be eligible to receive, a formula grant under title VI of the ESEA, and 
must commit to use all or part of that formula grant to help sustain 
this project after the conclusion of the grant period. To meet this 
priority, an applicant must include in its application--
    (a) A statement that indicates the school year in which the entity 
will begin using title VI formula grant funds to help support this 
project;
    (b) The percentage of the title VI grant that will be used for the 
project, which must be a substantial percentage of the recipient's 
title VI grant; and
    (c) The timeline for obtaining parent committee input and approval 
of this action, if necessary.

Proposed Priority 4--Preference for Indian Applicants

    To meet this priority, an application must be submitted by an 
Indian, Indian organization, Bureau of Indian Education (BIE) school or 
Tribal College or University (TCU) that is eligible to participate in 
the [email protected] program. A consortium of eligible entities that meets the 
requirements of 34 CFR 75.127 through 75.129 and includes an Indian 
Tribe, Indian organization, TCU, or BIE-funded school will also be 
considered eligible to meet this priority. In order to be considered a 
consortium application, the application must include the consortium 
agreement, signed by all parties.

Types of Priorities

    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Proposed Application Requirements

    Background: We propose general application requirements (General 
Requirements) that are based on statutory language, but that have been 
modified to require that applicants provide the information needed to 
establish that they meet the eligibility requirements. The proposed 
General Requirements are similar to requirements used in the FY 2017 
competition. We also propose an application requirement that involve a 
memorandum of agreement. During Tribal consultation, Tribal leaders and 
their designees expressed strong support for requiring a memorandum of 
agreement in cases where an applicant proposes to work with a partner. 
The Department also believes that an application requirement for a 
memorandum of agreement is needed in response to significant 
implementation challenges that current non-LEA grantees have 
encountered related to assessment data collection and professional 
development activities as a result of not having a formal agreement 
with the partner LEA. We propose to require that the memorandum of 
agreement be signed and dated no earlier than four months prior to the 
submission of a [email protected] grant application to ensure that the 
participating partners have established the agreement, as well as clear 
roles and responsibilities, based on the scope of work being proposed 
in the application, and not based on a pre-existing agreement that was 
intended to address goals and objectives outside the scope of the 
project.
    Third, we propose an application requirement that LEAs consult with 
Indian Tribes or Tribal Organizations. For applicants that are LEAs 
that are subject to section 8538 of the ESEA, we propose to codify the 
statutory requirement that they have consulted with local Tribes prior 
to applying. Consistent with the statutory requirement, this proposed 
application requirement would help ensure meaningful engagement with 
and contributions from the Tribe(s).
    Finally, we propose to require that an applicant provide 
information in its

[[Page 11325]]

application to describe how it will use Title VI Indian Education 
formula grant funds to sustain the project. This would promote project 
stability and assist applicants in long-term planning.
    The Assistant Secretary proposes the following application 
requirements for this program. We may apply one or more of these 
requirements in any year in which this program is in effect.

Proposed Application Requirement 1--General Requirements

    An applicant must include the following information in its 
application:
    (a) Students to be served. The number of students to be served by 
the project and the grade level(s) of targeted students in the proposed 
project.
    (b) Pre- and post-assessments. Whether a pre- and post-assessment 
of Native American language proficiency is available and, if not, 
whether grant funds will be used for developing such assessment.
    (c) Program description. A description of how the eligible entity 
will support Native American language education and development, and 
provide professional development for staff, in order to strengthen the 
overall language and academic goals of the school(s) that will be 
served by the project; ensure the implementation of rigorous academic 
content that prepares all students for college and career; and ensure 
that students progress toward meeting high-level fluency goals in the 
Native American language.

Proposed Application Requirement 2--Memorandum of Agreement

    Any applicant that proposes to work with a partner to carry out the 
proposed project must include a signed and dated memorandum of 
agreement that describes the roles and responsibilities of each partner 
to participate in the grant, including--
    (a) A description of how each partner will implement the project 
according to the timelines described in the grant application;
    (b) The roles and responsibilities of each partner related to 
ensuring the data necessary to report on the Government Performance and 
Results Act (GPRA) indicators; and
    (c) The roles and responsibilities of each partner related to 
ensuring that Native American language instructors can be recruited, 
retained, and trained, as appropriate, in a timely manner.
    This memorandum of agreement must be signed no earlier than four 
months prior to the date of submission of the application.

Proposed Application Requirement 3--LEA Consultation With Indian Tribes 
and Tribal Organizations

    If an applicant is an affected LEA that is subject to ESEA section 
8538, then the LEA is required to consult with appropriate officials 
from Tribe(s) or tribal organizations approved by the Tribes located in 
the area served by the LEA prior to its submission of an application, 
on the contents of the application as required under ESEA section 8538. 
Affected LEAs are those that have 50 percent or more of its student 
enrollment made up of Native American students; or received an Indian 
education formula grant under Title VI of the ESEA in the previous 
fiscal year that exceeds $40,000. (ESEA sec. 8538) The consultation 
must provide for the opportunity for officials from Indian Tribes or 
tribal organizations to meaningfully and substantively contribute to 
the application.

Proposed Application Requirement 4--Project Sustainability Leveraging 
Title VI Indian Education Formula Grant Funds

    An applicant or a partner must certify that it receives, or is 
eligible to receive, a formula grant under title VI of the ESEA, and 
must commit to use all or part of that formula grant to help sustain 
this project after the conclusion of the grant period. An applicant 
must include in its application--
    (a) A statement that indicates the school year in which the entity 
will begin using title VI formula grant funds to help support this 
project;
    (b) The percentage of the title VI grant that will be used for the 
project, which must be a substantial percentage of the recipient's 
title VI grant; and
    (c) The timeline for obtaining parent committee input and approval 
of this action, if necessary.

Proposed Program Requirements

    Background: We are proposing three program requirements, the first 
of which applies to grantees and requires Native American language 
assessments. The second and third apply to the Department and relate to 
a diversity of languages and geographical distribution.

Proposed Program Requirement 1--Native American Language Proficiency 
Assessment

    Background: We propose that grantees under the [email protected] program be 
required to administer pre- and post-assessments of Native American 
language proficiency to students participating in their projects. 
Participants in the Tribal consultation expressed concern about making 
an assessment--either a Native American language proficiency assessment 
or a Native American language content assessment--a focus of the [email protected] 
program. We agree that such a requirement should not be the focus of 
this program, but we believe that an assessment of Native American 
language proficiency is important to being able to gauge the success of 
the [email protected] program as a whole, as well as the success of individual 
grantees. Additionally, we believe that it is important for grantees to 
be able to assess the performance of their participating students. We 
note that all current grantees administer either oral or written 
assessments, or both. Assessments that would be required under this 
proposed requirement could take a variety of forms, including oral, 
written, or project-based, and be either formative or summative 
assessments. Accepting a wide variety of assessments is intended to 
minimize the burden of measuring students' progress toward high-level 
fluency goals. For example, current projects that support Native 
language programming for Pre-K-3 and Grades 6-8, respectively, incur 
assessment refinement and development costs that range from $0 to 
$30,000.
    Proposed Program Requirement: Grantees must administer pre- and 
post-assessments of Native American language proficiency to 
participating students. This Native American language assessment may be 
any relevant tool that measures student Native American language 
proficiency, such as oral, written or project-based assessments, and 
formative or summative assessments.

Proposed Program Requirement 2--Diversity of Languages

    Background: Section 6133(d) of the ESEA requires the Department to 
ensure that a diversity in languages exists among funded applicants to 
the maximum extent feasible. In the Explanatory Statement Congress 
provided with the Department of Education Appropriations Act, 2020, 
Congress stated that these funds should ``support the most extensive 
possible geographical distribution and language diversity.'' We are 
proposing to interpret the statutory requirement on diversity of 
languages by funding, in any year in which we make new awards, 
different projects with unique Native American languages. In the event 
that two or more projects that propose instruction in the same Native 
American language--that is, of the same dialect and in the same 
region--are scored and determined to be within funding range, the 
Department will award a grant to the project that

[[Page 11326]]

receives the highest number of points, assuming such project is high-
quality. The Department would then fund the next project focused on a 
different language, skipping other applicants whose projects would 
duplicate the highest scoring application serving an already funded 
language.
    ``Native American language'' means the historical, traditional 
languages spoken by Native Americans. (ESEA sec. 8101(34)). To 
interpret the requirement to ensure a diversity of languages, the 
Department must first determine how to distinguish Native American 
languages from one another.
    The Department did not receive suggestions during Tribal 
consultation on a reference, or broadly accepted classification system, 
for distinguishing Native American languages from one another. 
Therefore, we are seeking comment from the public on whether to use 
region-specific and dialect-specific differences among Native American 
languages for the purposes of determining diversity. This would be 
consistent with, for example, the list of 191 Native American languages 
in the United States that are listed in UNESCO's Atlas of the World's 
Languages in Danger (http://www.unesco.org/languages-atlas/index.php). 
We are seeking comment on whether a list such as the UNESCO's Atlas of 
the World's Languages in Danger would be a useful tool for the 
Department to use when distinguishing among languages. These proposed 
distinctions would address a major concern raised by Tribal leaders 
during Tribal consultation about how we would consider the same 
language that is spoken in different regions and may or may not have 
the same dialect.
    With regard to applying this type of distinction during a grant 
competition, in the NIA the Department would strongly recommend that 
all prospective applicants submit a letter of intent to apply and 
include the language, region, and community to be served by the 
proposed project, and whether it was proposing a new or existing 
program. We would then make public a list of the potential applicants 
and the requested information. This would allow prospective applicants 
to be aware of others who may be proposing a project in the same 
language.
    Proposed Requirement--Diversity of Languages: To ensure a diversity 
of languages as required by statute, the Department will not fund more 
than one project in any competition year that proposes to use the same 
Native American language, assuming there are enough high-quality 
applications. In the event of a lack of high-quality applications in 
one competition year, the Department may choose to fund more than one 
project with the same Native American language.

Proposed Program Requirement 3--Geographic Distribution

    Background: In the Explanatory Statement Congress provided with the 
Department of Education Appropriations Act, 2020, Congress stated that 
these funds should ``support the most extensive possible geographical 
distribution and language diversity.'' We are proposing a program 
requirement to reflect this intent. In the event that all projects with 
the highest ratings propose to serve students in the same State, the 
Department will award a grant to the project that receives the highest 
number of points and proposes to serve students in a different State, 
assuming such project is high-quality. Accordingly, the Department may 
fund an application out of rank order.
    Proposed Requirement--Geographic Distribution: To ensure geographic 
diversity, assuming there are enough high-quality applications, the 
Department will not exclusively fund projects that all propose to serve 
students in the same State in any competition year. In the event of a 
lack of high-quality applications in one competition year, the 
Department may choose to fund only applications that propose to provide 
services in one State.
    Statutory Program Requirement: The following program requirement is 
directly from statute and we have indicated in parentheses the specific 
statutory citation for this requirement.
    ISDEAA Statutory Hiring Preference:
    (a) Awards that are primarily for the benefit of Indians are 
subject to the provisions of section 7(b) of the Indian Self-
Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638). 
That section requires that, to the greatest extent feasible, a 
grantee--
    (1) Give to Indians preferences and opportunities for training and 
employment in connection with the administration of the grant; and
    (2) Give to Indian organizations and to Indian-owned economic 
enterprises, as defined in section 3 of the Indian Financing Act of 
1974 (25 U.S.C. 1452(e)), preference in the award of contracts in 
connection with the administration of the grant. (25 U.S.C. 5307(b))
    (b) For purposes of the ISDEAA statutory hiring preference only, an 
Indian is a member of any federally recognized Indian Tribe.

Proposed Definitions

    Background: The Assistant Secretary proposes the following 
definitions for this program. These proposed definitions, intended to 
clarify eligibility and program requirements for the program, were used 
in the FY 2017 competition, with the exception of Indian organization, 
which is the same definition used in the Indian Professional 
Development Program (34 CFR 263.3). We may apply one or more of these 
definitions in any year in which this program is in effect.
    Indian organization (or Tribal organization) means an organization 
that--
    (1) Is legally established--
    (i) By Tribal or inter-Tribal charter or in accordance with State 
or Tribal law; and
    (ii) With appropriate constitution, bylaws, or articles of 
incorporation;
    (2) Includes in its purposes the promotion of the education of 
Indians;
    (3) Is controlled by a governing board, the majority of which is 
Indian;
    (4) If located on an Indian reservation, operates with the sanction 
of or by charter from the governing body of that reservation;
    (5) Is neither an organization or subdivision of, nor under the 
direct control of, any institution of higher education; and
    (6) Is not an agency of State or local government.
    Tribe means either a federally recognized Tribe or a State-
recognized Tribe.
    Statutory Definitions: The following definitions are directly from 
statutes governing the [email protected] program. We have indicated in parentheses 
the specific statutory citation for each of these definitions.
    Native American means: (1) ''Indian'' as defined in section 6151(3) 
of the ESEA (20 U.S.C. 7491(3)), which includes individuals who are 
Alaska Natives and members of federally recognized or State recognized 
Tribes; (2) Native Hawaiian; or (3) Native American Pacific Islander. 
(ESEA secs. 6151(3) and 8101(34))
    Native American language means the historical, traditional 
languages spoken by Native Americans. (ESEA sec. 8101(34))
    Tribal college or university means an institution that--
    (1) Qualifies for funding under the Tribally Controlled Colleges 
and Universities Assistance Act of 1978 (25 U.S.C. 1801, et seq.) or 
the Navajo Community College Act (25 U.S.C. 640a note); or
    (2) Is cited in section 532 of the Equity in Educational Land-Grant 
Status

[[Page 11327]]

Act of 1994 (7 U.S.C. 301 note). (ESEA sec. 6133 and section 316 of the 
Higher Education Act of 1965 (20 U.S.C. 1059c))

Proposed Selection Criteria

    We propose the following selection criteria for evaluating an 
application under this program. Most of the selection criteria also 
appeared in the FY 2017 NIA. The first proposed factor under Quality of 
Project Design has been revised to clarify that language fluency should 
be grade-level appropriate, as opposed to ``high-fluency,'' which 
implies a level of fluency that may not be a realistic goal for an 
elementary grade level program to carry out within a three-year period. 
The second proposed factor addresses the role of family engagement. 
Evidence-based research in language acquisition finds that conducting 
family-oriented activities, whether at home or in school, increases the 
likelihood that the student will develop language proficiency. Current 
grantees have also identified family engagement as a benefit, 
particularly since many current [email protected] projects serve students in 
Kindergarten to Grade 2. The third proposed factor addresses the 
quality of the plan to develop and administer pre- and post-assessments 
of Native American language proficiency for participating students.
    Under Quality of Project Services, the first proposed factor 
addresses grade-level appropriate instruction in the Native American 
language. The subsequent factors under Quality of Project Services are 
similar as those that appeared in the FY 2017 NIA. The next selection 
criterion, Quality of Project Personnel, is based partially on EDGAR 
selection criterion in 34 CFR 75.210(e) and appeared in the FY 2017 NIA 
but is and slightly modifies here to omit the specific qualifications 
for key project personnel and project consultants and contractors. 
Instead, we focus on evaluating an application's use of its teachers 
and their experience as we believe this is critical to a successful 
project. For the final selection criterion, Adequacy of Resources, 
which appeared in the 2017 NIA, we use identical language of the first 
factor and omit the last two, as we believe it is most important to 
focus on experience in operating Native American language programs. We 
may apply one or more of these criteria in any year in which this 
program is in effect. In the NIA, we will announce the maximum possible 
points assigned to each criterion.
    (a) Quality of the project design. The Secretary considers the 
quality of the design of the proposed project. In determining the 
quality of the design of the proposed project, the Secretary considers 
one or more of the following factors:
    (1) The extent to which the project design will ensure that 
students progress toward grade-level and developmentally appropriate 
fluency in the Native American language.
    (2) The extent to which the proposed project will incorporate 
parent engagement and participation in Native American language 
instruction.
    (3) The quality of the approach to developing and administering 
pre- and post-assessments of student Native American language 
proficiency, including consultation with individuals with assessment 
expertise, as needed.
    (b) Quality of project services. The Secretary considers the 
quality of the services to be provided by the proposed project. In 
determining the quality of the services to be provided by the proposed 
project, the Secretary considers one or more of the following factors:
    (1) The quality of the plan for supporting grade-level and 
developmentally appropriate instruction in a Native American language 
by providing instruction of or through the Native American language.
    (2) The extent to which the project will provide professional 
development for teachers and, as appropriate, staff and administrators 
to strengthen the overall language proficiency and academic goals of 
the school(s) that will be served by the project, including cultural 
competence training for all staff in the school(s).
    (3) The extent to which the percentage of the school day that 
instruction will be provided in the Native American language is 
ambitious and is reasonable for the grade level and population served.
    (c) Quality of project personnel. The Secretary considers the 
quality of the personnel who will carry out the proposed project. In 
determining the quality of project personnel, the Secretary considers 
the extent to which the applicant encourages applications for 
employment from persons who are members of groups that have 
traditionally been underrepresented based on race, color, national 
origin, gender, age, or disability.
    In addition, the Secretary considers the extent to which teachers 
of the Native American language who are identified as staff for this 
project have teaching experience and are fluent in the Native American 
language.
    (d) Adequacy of resources. The Secretary considers the adequacy of 
resources for the proposed project. In determining the adequacy of 
resources for the proposed project, the Secretary considers the extent 
to which the applicant or a partner has experience in operating a 
Native American language program.
    Final Priorities, Requirements, Definitions, and Selection 
Criteria: We will announce the final priorities, requirements, 
definitions, and selection criteria in a document in the Federal 
Register. We will determine the final priorities, requirements, 
definitions, and selection criteria after considering responses to this 
document and other information available to the Department. This 
document does not preclude us from proposing additional priorities, 
requirements, definitions, and selection criteria subject to meeting 
applicable rulemaking requirements.

    Note: This document does not solicit applications. In any year 
in which we choose to use any of the final priorities, requirements, 
definitions, and selection criteria, we invite applications through 
a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that

[[Page 11328]]

is a significant regulatory action under Executive Order 12866 and that 
imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2020, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. The proposed priorities, 
requirements, definitions, and selection criteria are not a significant 
regulatory action. Therefore, the requirements of Executive Order 13771 
do not apply.
    We have also reviewed these proposed priorities, requirements, 
definitions, and selection criteria under Executive Order 13563, which 
supplements and explicitly reaffirms the principles, structures, and 
definitions governing regulatory review established in Executive Order 
12866. To the extent permitted by law, Executive Order 13563 requires 
that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these proposed priorities, requirements, 
definitions, and selection criteria only on a reasoned determination 
that their benefits would justify their costs. In choosing among 
alternative regulatory approaches, we selected those approaches that 
would maximize net benefits. Based on the analysis that follows, the 
Department believes that these proposed priorities, requirements, 
definitions, and selection criteria are consistent with the principles 
in Executive Order 13563.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities.
    Discussion of Costs and Benefits: We have determined that these 
proposed priorities, requirements, definitions, and selection criteria 
would impose minimal costs on eligible applicants. Program 
participation is voluntary, and the costs imposed on applicants by 
these proposed priorities, requirements, definitions, and selection 
criteria would be limited to paperwork burden related to preparing an 
application. The potential benefits of implementing the programs--for 
example, establishing partnerships among parties with mutual interests 
in developing Native language programs, and planning concrete 
strategies for supporting Native language revitalization--would 
outweigh any costs incurred by applicants, and the costs of carrying 
out activities associated with the application would be paid for with 
program funds. For these reasons, we have determined that the costs of 
implementation would not be excessively burdensome for eligible 
applicants, including small entities.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
priorities, requirements, definitions, and selection criteria easier to 
understand, including answers to questions such as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section.

Regulatory Flexibility Act Certification

    The Secretary certifies that this proposed regulatory action would 
not have a substantial economic impact on a substantial number of small 
entities. The U.S. Small Business Administration Size Standards define 
proprietary institutions as small businesses if they are independently 
owned and operated, are not dominant in their field of operation, and 
have total annual revenue below $7,000,000. Nonprofit institutions are 
defined as small entities if they are independently owned and operated 
and not dominant in their field of operation. Public institutions are 
defined as small organizations if they are operated by a government 
overseeing a population below 50,000.
    Although some of the Alaska Native Organizations, LEAs, and other 
entities that receive [email protected] program funds qualify as small entities 
under this definition, the proposed definitions and requirements would 
not have a significant economic impact on these small entities. The 
Department believes that the costs imposed on an applicant by the 
proposed priorities, requirements, definitions, and selection criteria 
would be limited to the costs related to providing the documentation 
outlined in the proposed definitions and requirements when preparing an 
application and that those costs would not be significant. 
Participation in the [email protected] program is voluntary. We invite comments 
from small entities as to whether they believe the proposed priorities, 
requirements, definitions, and selection criteria would have a 
significant economic impact on them and, if so, we request evidence to 
support that belief.

[[Page 11329]]

Paperwork Reduction Act of 1995

    The proposed priorities, requirements, and selection criteria 
contain information collection requirements that are approved by OMB 
under OMB control number 1894-0006. Therefore, we will discontinue the 
FY 2017 information collection approved by OMB under OMB control number 
1810-0731 that is set to expire April 30, 2021.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. These proposed regulations may have federalism 
implications. We encourage State and local elected officials to review 
and provide comments on these proposed regulations.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Adobe Portable Document Format 
(PDF). To use PDF you must have Adobe Acrobat Reader, which is 
available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: February 20, 2020.
Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2020-03762 Filed 2-26-20; 8:45 am]
 BILLING CODE 4000-01-P