[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 (NAL@ED) 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 (NAL@ED) 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 NAL@ED program was first authorized in late 2015 by
the Every Student Succeeds Act, which also reauthorized the ESEA. For
the first NAL@ED 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
NAL@ED 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 NAL@ED 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 NAL@ED 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 NAL@ED
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 NAL@ED. 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 NAL@ED 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 NAL@ED 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 NAL@ED 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 NAL@ED 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 NAL@ED
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 NAL@ED 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 NAL@ED 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 NAL@ED 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 NAL@ED 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 NAL@ED 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]
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