[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Proposed Rules]
[Pages 17794-17805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06224]


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DEPARTMENT OF EDUCATION

34 CFR Part 263

RIN 1810-AB54
[Docket ID ED-2019-OESE-0126]


Indian Education Discretionary Grant Programs; (Demonstration 
Grants for Indian Children and Youth Program)

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Education (Department) proposes to revise 
the regulations that govern the Demonstration Grants for Indian 
Children and Youth Program (Demonstration program), authorized under 
title VI of the Elementary and Secondary Education Act of 1965, as 
amended (ESEA), to implement changes to title VI resulting from the 
enactment of the Every Student Succeeds Act (ESSA). These proposed 
regulations would update, clarify, and improve the current regulations. 
The Secretary also proposes a new priority, and accompanying 
requirements and selection criteria, for applicants proposing to 
empower Tribes and families to decide which education services will 
best support their children to succeed in college and careers.

DATES: We must receive your comments on or before April 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: The 
Department strongly encourages commenters to submit their comments 
electronically. However, if you mail or deliver your comments about 
these proposed regulations, address them to Bianca Williams, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W237, 
Washington, DC 20202-6110. Telephone: (202) 453-5671.
    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: Bianca Williams, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3W237, Washington, DC 20202-
6110. Telephone: (202) 453-5671.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call (800) 877-8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations. To ensure that your comments have maximum 
effect in developing the final regulations, we urge you to identify 
clearly the specific section or sections of the proposed regulations 
that each of your comments addresses and to arrange your comments in 
the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any further ways we could 
reduce potential

[[Page 17795]]

costs or increase potential benefits while preserving the effective and 
efficient administration of the Department's programs and activities.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments in person at 400 Maryland Ave. SW, 
Room 3W327, Washington, DC 20202-6110, between 8:30 a.m. and 4:00 p.m., 
Eastern Time, Monday through Friday of each week except Federal 
holidays. To schedule a time to inspect comments, please contact the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these proposed regulations. To schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background

    The Department proposes to revise the regulations that govern the 
Demonstration Grants for Indian Children and Youth Program authorized 
under title VI of ESEA to implement changes to title VI resulting from 
the enactment of ESSA and to better enable the Department and grantees 
to meet the objectives of the program. As described in the Tribal 
Consultation section of this document, Tribes favored expanding the 
ability of families to choose high-quality educational opportunities 
during recent consultation sessions on the topic. Accordingly, the 
Department proposes a new priority and accompanying requirements and 
selection criteria for applicants proposing to empower parents and 
students to choose education services best suited to their needs.
    Applicants addressing the proposed priority on education choice 
would have the flexibility to determine which academic outcomes are 
most critical for students in their communities, including students 
with disabilities, in the overall effort to promote college and career 
readiness. Applicants would then identify education service options 
they believe are most likely to help students achieve those outcomes 
and provide parents and students with the options to choose the 
services best suited to their needs, while also allowing parents to 
request a particular service or provider not already identified. Under 
the proposed priority, applicants would propose to use grant funds to 
pay for the services that parents or students select. The applicant 
would need to explain how it would transfer funds directly to the 
selected service provider, such as an individual providing tutoring 
services or a service provider offering supplemental counseling, which 
could be through an online payment portal.
    Because Tribes are not the only eligible applicants for the 
Demonstration Grants program, we propose to require a non-Tribal 
applicant addressing the proposed priority to partner with a Tribe. If 
the student population to be served by the applicant consists of 
students from multiple Tribes and less than half of the students to be 
served are from one Tribe, the applicant could partner with a Tribal 
organization rather than a Tribe. We note that for projects that will 
serve primarily students who are members of federally recognized 
Tribes, grantees would be required to give preference in hiring and 
contracting to Indian persons and entities. (25 U.S.C. 5307(b); 34 CFR 
263.23)
    Under the proposed priority, the grantee, or the non-Tribal grantee 
and its partnering Tribe, would identify the services and specific 
providers from which parents and students would choose and institute a 
method by which a parent may request a service or provider not included 
among those identified by the grantee or partnering Tribe. If a grantee 
or Tribe does not permit the provider or service a parent requests, it 
must explain in writing to the parent the rationale for that denial. 
The grantee would set up a service selection method, such as an online 
portal, walk-in center, or other method by which parents and students 
would choose from the list of preapproved providers.
    The proposed priority would recognize Tribal sovereignty by giving 
Tribes a lead role in identifying both the range of services to be 
provided and the pre-approved providers of those services. For example, 
one Tribe may determine, based on an analysis of community-level data, 
that its largest barrier to student success is the lack of school 
counseling services and mentoring in schools attended by its students. 
That Tribe could then enter into agreements with entities that would 
provide students with access to individual counseling services or 
mentoring when selected by students and parents. As another example, a 
Tribal applicant may determine that its greatest local need is 
improving the high school graduation rate. That Tribe could select 
multiple services and providers to meet that project objective, such as 
tutoring, and courses provided by a community college from which a 
parent could choose. Applicants can identify multiple project 
objectives.
    For all proposed projects, we propose language in this priority 
that would require services to be supplemental to existing school 
services and existing funding sources. For example, if there is an 
existing Native American language course during the school day, grant 
funds could not be used to pay for the existing teacher but could be 
used to expand the number of educators offering language classes. 
Grantees could also establish a new after-school Native American 
language instruction program.
    We would permit applicants addressing the proposed priority to 
request a planning period within the first year of funding to allow 
grantees to develop a service selection process and finalize written 
agreements with service providers before beginning implementation.
    We note that, under ESEA section 6121(e), no more than five percent 
of funds awarded for a grant under this program may be used for 
administrative purposes, and for grants made using FY 2020 funds this 
administrative cost cap applies only to direct administrative costs, 
not indirect costs.
    As further described in the proposed regulation, we propose in 
Sec.  263.25(h) to require grantees to spend at least 80 percent of 
their grant funds on direct services to eligible students. If 
applicants propose a planning year in the first year of the grant, this 
80 percent limit would not apply to that first year. Grantees would 
also be prohibited from spending more than 15 percent of grant funds on 
the service selection method or the parent involvement and feedback 
process.
    We invite comment specifically on the following issues:
    (1) We are interested in ensuring that we review all applications 
in a fair and equitable manner. Would asking applicants to self-select 
into ``rural'' and ``non-rural'' categories help ensure we fairly 
evaluate applicants with greater or fewer relevant resources to support 
this work? If not, are there other ways for the Department to 
objectively and fairly consider applicants?
    (2) The Department is considering establishing new performance 
measures for this program under the Government Performance and Results 
Act of 1993 (GPRA). While we are not required to seek comment on GPRA 
performance measures, the Department believes the development of 
effective performance measures can benefit from public input and 
invites public comment to help

[[Page 17796]]

inform the final performance measures for this program. Although the 
Department will consider the public comments, the Department is not 
limited by the terms of the proposed performance measures or public 
comment on those measures in establishing final performance measures. 
We specifically invite comment on whether the following measures would 
provide meaningful data, and also on the feasibility for grantees of 
collecting and reporting data that would inform the measures:
    A. The total number of options offered through the project from 
which participating students can choose.
    B. The percentage of options offered through the project from which 
participating students can choose education-related services that are 
culturally relevant, as determined by the grantee.
    C. The number of grantees that met their educational outcomes 
objective(s) (e.g., decreased school suspension rates, increased 
graduation rates), as defined by the grantee.
    D. The total number of students served.
    E. The percentage of parents who report that the number, variety, 
and quality of options offered meet their children's needs.
    F. The average time it took a grantee to respond to requests for 
specific services.
    G. The percentage of parent requests for additional services that 
resulted in adding new services to the offerings (submission should 
include both numerator and denominator).
    (3) The Department is considering conducting a national study of 
the Demonstration program to learn more about how grantees expand 
educational choice in Tribal communities. How might the Department best 
implement such a study to yield helpful information about promising 
practices related to increased educational choice?

Tribal Consultation

    The Department solicited Tribal input on whether to add a new 
priority focused on educational choice to the Demonstration Grants for 
Indian Children and Youth Program by issuing several email messages to 
Tribal leaders from each of the federally recognized Indian Tribes, all 
Tribal College or University (TCU) presidents, current grantees under 
ESEA title VI formula and discretionary grant programs, and other 
stakeholders.
    The Department held a blended in-person and virtual Tribal 
consultation in Seattle on May 2, 2019, and another in Washington DC, 
on May 7, 2019, and continued to solicit Tribal comment through June 7, 
2019, through the [email protected] mailbox. Specifically, we 
sought input on whether to add a priority to this program that would 
allow for opportunities for grantees to give students and parents more 
choice in deciding which education services will better help their 
children become ready to succeed in college and careers, and on the 
best ways to design and implement such a program, taking into account 
the current needs of Indian students for such services, the capacity of 
eligible entities to implement such a program, and the types of 
education options currently available to help Indian children become 
ready to succeed in college and career.
    The Department requested responses to nine specific questions. We 
list each question below, followed by a summary of the input we 
received from the in-person and virtual consultations and from written 
comments, and provide our response. Several of the written comments 
provided helpful suggestions for improvement of the proposed priority, 
and we have incorporated several of the suggestions into these proposed 
regulations, as indicated below.
    1. Do you support a priority to permit grantees to operate a 
project through which parents of eligible Indian students could choose 
education services for their child, from a list of Tribally chosen 
education services?
    In total, 63 comments on this topic were received, a majority of 
which were in favor. The comments in opposition included helpful 
suggestions for improving the priority.
    One Tribe stated in its written comments that it does not have 
either State-funded charter schools or private schools in its service 
area, and there are no commercial options that are culturally relevant. 
The proposed priority would not require that specific education 
options, such as charter schools or private schools, be present for an 
applicant to receive a grant. Applicants would be able to propose 
services that meet the needs of the local community.
    Several Tribal participants objected to using contractors for 
services rather than letting the Tribe provide all services; one stated 
that it would be preferable to use the funds to build Tribal capacity 
for providing all services. Under the proposed priority, applicants 
could propose to provide services directly, but would also need to name 
at least one independent provider of the proposed services. Applicants 
would be required to enter into written agreements with service 
providers, other than the applicant, to ensure accountability of the 
funds and oversight of services. If Tribes are interested in grants 
that support building capacity to administer education programs, the 
Department also offers grants through the State Tribal Education 
Partnership grants.
    2. Which of the following possible services would your Tribe be 
interested in including in such a project?
    a. Native language, history, or culture courses.
    b. Advanced, remedial, and elective courses, including those 
offered exclusively online.
    c. Apprenticeships and industry certifications.
    d. Concurrent and dual enrollment.
    e. Private or home education.
    f. Special education or related services such as speech or physical 
therapy.
    g. Education technology, including learning software or hardware.
    h. Transportation needed to access supplemental school services, 
such as after-school or summer services.
    i. Tutoring, especially for students in low-performing schools.
    j. Summer and after-school education programs.
    k. Testing preparation and fees and application fees.
    Tribal leaders expressed interest in all of these services, 
although the ones most favored were Native language, history, or 
culture (a), tutoring, especially for students in low-performing 
schools (i), summer and after-school education programs (j), and 
apprenticeships and industry certifications (c). Several Tribal leaders 
also emphasized the importance of transportation (h), including being 
able to support student travel for summer and after-school 
opportunities, such as a late bus.
    One Tribe submitted written comments expressing opposition to 
including home schooling as a service that could be funded under the 
proposed priority because in its State there is limited support or 
monitoring to ensure that home-schooled children are being educated. In 
addition, the Tribe stated that, instead of permitting tutoring 
services, the focus should be on improved teaching. The proposed 
priority would allow home schooling to be an option, but would not 
require applicants to offer home schooling under their project. 
Additionally, while this proposed priority could not support educator 
professional development since it focuses on expanding the ability of 
families to choose high-quality educational opportunities, the

[[Page 17797]]

Department shares the commenter's interest with regard to improving 
instruction. The Department also provides Indian Education Professional 
Development grants to train Indian individuals to become effective 
teachers and administrators serving Indian students.
    Another Tribe opposed the idea of encouraging parents to choose 
off-reservation schools for their students. The proposed priority would 
not require applicants to offer any particular services from the list 
above; rather, the applicant would choose which services to offer to 
parents based on the needs of the local community and would establish a 
method by which a parent may request a service not included on such a 
list. The list of services in this consultation question was provided 
to illustrate examples of the types of services an applicant might 
consider.
    One Tribe stated that online courses do not have appropriate 
content for the Tribe's needs but that a hybrid of online and on-site 
project-based learning would be invaluable. We think that Tribes are 
best suited to determine a range of education options that would work 
well for students in their community and that parents are best suited 
to select services for their children. We note that the model described 
by the commenter could satisfy the proposed priority.
    3. Are there any other education services that you would be 
interested in including in a project?
    At the Seattle consultation, several participants suggested that 
student counseling services be included in the list, due to the lack of 
school mental health or counseling services in Indian country. We have 
added individual counseling as a service that could be included, 
provided it would be supplemental to existing services. Additionally, 
grantees would need to offer more than one type of service.
    Participants also suggested we allow grantees to spend grant funds 
on books and other materials. Books and other materials would be an 
allowable cost for certain services from which parents could choose 
under the proposed priority, for example, for homeschooling or 
afterschool reading services.
    One Tribe stated in its written comments that it would be 
interested in using funds for curricula that address decolonization and 
resiliency programming. The option to select services that teach these 
topics could be provided as a service choice to parents under the 
proposed priority; the Department does not dictate curricula.
    Another Tribe suggested that we add intensive in-service 
professional development in literacy for grades pre-K through 4. As 
described above, the Department shares the commenter's interest with 
regard to improving instruction. The Department also provides Indian 
Education Professional Development grants to train Indian individuals 
to become effective teachers and administrators serving Indian 
students. Educators supported by the Professional Development program 
can include those focused on literacy in grades pre-K through 4. In 
addition, Indian Education formula grants to LEAs can support educator 
professional development, including for literacy educators in grades 
pre-K through 4. The proposed priority would focus on services that 
parents could choose rather than ones that schools provide to all 
teachers.
    One Tribe suggested that we permit certifications and trainings 
given by Tribal governments to build the next generation of Tribal 
administrators. Assuming that this service would target high school 
students and not postsecondary adult learners, this could be a possible 
service that parents could choose, if it met the local needs of the 
community.
    One Tribal leader suggested that the funds be used to support 
student participation in after-school sports, arts, and music programs. 
Because the purpose of the Demonstration grant program is to improve 
educational opportunities and achievement of Indian children and youth, 
the proposed priority would permit the use of funds for such activities 
if the applicant can demonstrate that the activity is culturally 
relevant or is supported by evidence that ties the activity to relevant 
education outcomes, and if there is parental interest in the activity.
    4. From the list in question 2 above, which are currently available 
in your area? Are the current options adequate, and are there adequate 
secular options in your area?
    Responses on the issue of current availability varied a great deal 
depending on the size and location of the Tribe. Many current 
Demonstration grantees felt that, given their local graduation and 
dropout rates, even if some of the services are currently being 
offered, the options provided are insufficient to meet demand. One 
Tribe noted it currently offers home education and special education 
services and therapies; however, the local community is greatly lacking 
in Native American language courses, advanced and remedial academic 
courses, access to online courses, summer educational programs, and 
transportation services for after-school programs. We did not receive 
any responses to the specific question about secular options.
    5. To ensure accountability and allowability of expenses, should 
the Tribe be responsible for approving providers of the education 
services? Do you have other ideas for how to ensure that funds are 
spent on allowable expenses?
    Most Tribal leaders supported the concept that Tribes be 
responsible for approving service providers, although several 
participants opposed the idea, stating that if a non-Tribal applicant 
receives a grant, it should be the responsible party, rather than 
putting the burden on the partnering Tribe to select or approve 
providers. One commenter suggested in its written comments that the 
grantee be responsible, through a subcommittee, rather than requiring 
the Tribe to be responsible. Under the proposed priority, a Tribal 
applicant would choose the project focus and specific services based on 
local needs, but for a non-Tribal applicant, such as a State 
educational agency (SEA), the applicant and its Tribal partner would 
jointly make these decisions.
    One Tribe suggested in its written comments that, to ensure funds 
are spent on allowable expenses, the approved providers should provide 
pre- and post-project assessment data, including student and parent 
perception surveys as well as budget line-items and budget summaries. 
We have incorporated this suggestion into a proposed selection 
criterion under which applicants would be awarded points based on the 
extent to which the project is designed to improve student and family 
satisfaction with the student's overall education experience through 
means such as pre- and post-project surveys. We note that applicants 
for all Department discretionary grant programs are required to submit 
detailed information about their proposed budgets (34 CFR 75.117), so 
we do not need program-specific regulations on that point.
    Another Tribe stated that service providers should go through a 
competitive process at the local level. One Tribe stated that services 
should be approved for a limited period of time, subject to review and 
renewal by the Tribe. We think that applicants will be in the best 
position to determine how to appropriately select providers while also 
giving parents the option to request a provider not included on an 
approved list, subject to written approval or disapproval by the 
grantee. The selection and oversight process would be up to the 
applicant to design under

[[Page 17798]]

the proposed priority, consistent with applicable procurement policies.
    Another Tribe that is a current Demonstration program grantee wrote 
in favor of the proposed priority and suggested that projects include a 
liaison with parents to address issues and mediate disputes, such as in 
situations in which a parent is unhappy with the services provided. We 
have added a proposed requirement for a parent feedback process under 
this priority. In addition, we note that an applicant could establish a 
parent liaison position to support this important work, which we 
propose to include in Sec.  263.25 as an example of ways an applicant 
may implement parent outreach. Such a role would be especially helpful 
in assisting grantees as they identify options parents can select, or 
in responding to requests for specific services from individual 
parents. An individual serving as a parent liaison could also assist 
with outreach and communications to parents regarding the availability 
of services through this program.
    6. The Department is considering incentivizing or requiring 
grantees to establish a website (which could be managed through a 
contractor) that would allow families to choose how to apply an 
allotted stipend to certain preapproved education expenses, so that 
families would not receive payments directly. Do you support the 
inclusion of such an incentive or requirement for a website in the new 
priority? Would families have internet access to make that feasible?
    Tribal leaders were generally opposed to requiring grantees to 
create a website portal for families to choose services; they preferred 
that it be an option, due to lack of internet availability in many 
areas. However, one participant stated that an online portal would make 
it easier for parents to choose services and would improve 
accountability.
    One Tribal leader was concerned that requiring grantees to contract 
with a third party would create additional unnecessary bureaucracy and 
stated that the Tribe already has a system for paying vendors. Some 
stated that a better way to have parents select services would be at 
community meetings, or through home visits. Accordingly, we are not 
proposing to require service selection systems to be web-based. Tribes 
could create or use existing systems or websites or use a different 
method for choosing services that better fits the needs of their 
community. Regardless of the mechanism, applicants should ensure that 
parents are empowered to select individual services for each 
participating student. These services selected will likely vary among 
participating students.
    7. Should the new priority require eligible entities that are not 
Tribal (e.g., State educational agencies (SEAs) or LEAs) to partner 
with a Tribe, Indian organization, or TCU?
    Comments were uniformly in favor of requiring non-Tribal applicants 
to partner with a Tribe. Several written comments urged that we permit 
only Tribes to be lead applicants. We cannot restrict the statutory 
eligibility for this program, which permits SEAs and LEAs to apply, in 
addition to Tribally connected entities (i.e., Tribes, TCUs, Bureau of 
Indian Education (BIE)-funded schools, and Indian organizations). We 
propose requiring an applicant that is not a Tribe to partner with a 
Tribe if it proposes to serve primarily students from that Tribe; if it 
proposes to serve students from many different Tribes, the applicant 
would be required to partner with a Tribally connected entity.
    One Tribe suggested that the proposed priority would create a risk 
that a non-Tribal entity could target a vulnerable Indian school 
population for monetary gain while providing poor-quality services. 
Under the proposed priority, the grantee would be responsible for 
overseeing all providers and ensuring quality. We have added to the 
proposed requirements a plan for how the applicant would oversee 
service providers and ensure that students are receiving high-quality 
services under the project, and a description, in the requirement for 
an agreement with providers, of how the grantee will hold the provider 
accountable to the terms of the agreement. We have also proposed a 
selection factor evaluating the quality of an applicant's proposed plan 
to oversee the service providers.
    8. How should grant amounts be determined?
    a. Should the grant amounts for projects planning to fund a full-
time education program be based on a percentage of the per-pupil 
expenditure in your area or State multiplied by the number of students 
to be served?
    One Tribe, in its written comments, opposed this idea on the basis 
that per-pupil expenditures do not consider local and geographic 
constraints; another stated that due to differences between urban and 
rural areas, consideration should be given to regional rather than 
State-average expenditures. Accordingly, we propose a selection 
criterion related to the way an applicant determines the appropriate 
requested amount for their projects, which should generally reflect the 
average per-pupil amount to be made available, and the number of 
students whom the applicant intends to serve.
    b. How should grant amounts for applicants who propose to provide 
supplemental services be calculated?
    One Tribal leader stated that this should be based on the Tribe's 
capacity and budget. We agree.
    c. On what other factors should the budget be based?
    One Tribe suggested in its written comments that in awarding grants 
we use the factors of innovation, reproducibility, and post-grant 
sustainability. We agree that the ability to sustain the project 
following the grant period, as well as the applicant's plans and 
ability to share the project design and results with others, are 
important considerations, and we will take those into account when 
choosing which selection criteria to include in the NIA.
    9. What other considerations should go into the design of this 
priority?
    Several Tribes commented that the program should reflect Tribal 
sovereignty, in particular the sovereign right to determine education 
programming and services. We agree with these comments and have drafted 
the proposed priority in a way that we believe reflects Tribal 
sovereignty, but we welcome feedback on the specific language in the 
proposed regulations.
    One Tribe suggested that we consider urban and rural applicants 
separately, as rural applicants often face higher costs and have fewer 
existing resources, and that we consider the applicant's capacity and 
infrastructure. Another stated that we should take into account a 
Tribe's existing capacity. The existing regulations already include a 
priority for rural applicants, so we are not proposing such a priority 
for rural applicants in this NPRM. We are proposing a priority for 
applicants who do not meet the existing rural priority; this proposed 
``non-rural'' priority would allow us to consider rural and non-rural 
applicants separately in future competitions. We have included in this 
NPRM a targeted question regarding whether differentiating between 
rural and non-rural applicants is an appropriate proxy for discerning 
between applicants with limited resources and applicants with multiple 
resources.
    Another Tribe that is a current Demonstration grantee, writing in 
favor of the proposed priority, stated that the Department should 
consider outcomes as a factor when making award decisions, and that 
continued communication and ongoing feedback should be used for 
planning and implementation of the projects. We agree that measurable 
project objectives

[[Page 17799]]

and clear plans for continuous improvement should be important parts of 
an applicant's proposal and will consider including selection criteria 
in the NIA to ensure that peer reviewers consider these factors.

Significant Proposed Regulations

    We group major issues according to section of the regulations.

What definitions apply to the Demonstration Grants for Indian Children 
and Youth program? (Sec.  263.20)

    Statute: ESEA section 6121(d)(3) requires that applications include 
a description of how parents and family of Indian children have been 
and will be involved in implementing the project activities. ESEA 
section 8101(38) contains a definition of ``parent.''
    Current Regulations: The current regulations do not define 
``parent.''
    Proposed Regulations: We propose to add the definition of 
``parent'' from section 8101 of the ESEA.
    Reasons: We propose to add the ESEA definition of ``parent'' to 
make it clear that the term includes a legal guardian or other person 
standing in loco parentis, such as a grandparent (Sec.  263.20).

What priority is given to certain projects and applicants? (Sec.  
263.21)

    Statute: ESEA section 6121(a) provides that the purpose of the 
program is to support projects to develop, test, and demonstrate the 
effectiveness of services and programs to improve education 
opportunities and achievement of Indian children and youth. Section 
6143 requires the Secretary to give a preference to Indian Tribes, 
Tribal organizations, and TCUs in making grants under this program.
    Current Regulations: Section 263.21 contains three mandatory 
priorities in paragraphs (a) and (b), and five optional priorities in 
paragraph (c) that the Secretary may choose in any year in which there 
is a new competition.
    Proposed Regulations: We propose to add BIE-funded schools to the 
list of entities in Sec.  263.21(b)(1) that receive competitive 
preference. We also propose to add a priority in Sec.  263.21(c) for 
entities that are not rural, that is, that do not meet the existing 
priority for rural entities.
    In addition, we propose to add a priority for projects that would 
expand educational choice for parents, allowing them to direct funding 
to particular education services to expand the ability of parents to 
choose high-quality educational opportunities to meet the needs of 
Native youth. The requirements pertaining to this proposed priority 
would be in a new Sec.  263.25.
    Reasons: We propose to add BIE-funded schools to the list of 
entities for which we give competitive preference in order to clarify 
in the regulations our long-standing interpretation of section 6143 of 
the ESEA in this regard. That statutory provision requires that, in 
making grants under the Demonstration program as well as under certain 
other programs, the Department must give preference to Indian tribes, 
organizations, and institutions of higher education. The Department 
treats all BIE-funded schools as ``Indian organizations'' for purposes 
of this provision, and this regulation would provide clarity to 
applicants that are BIE-funded schools.
    We propose to add a priority for entities that do not meet the 
existing rural priority in order to give the Department the ability to 
consider rural and non-rural applicants separately. The regulations 
already contain a priority for rural applicants in Sec.  263.21(c). The 
proposed priority would define the inverse population and would be used 
in conjunction with the priority for rural applicants; the Department 
could use multiple absolute priorities to create separate funding 
slates for applicants that propose to serve rural communities compared 
with applicants that do not. This would give the Department the ability 
to distribute the grants fairly among high-scoring rural and non-rural 
applicants, so as not to disadvantage rural entities that may not have 
access to the same resources as non-rural applicants.
    We propose the new educational choice priority in order to support 
Tribal communities in designing projects to meet their goals and 
objectives while giving parents the opportunity to select the specific 
services that best meet the needs of their own children. Under the 
priority used in the Demonstration Grants program for fiscal years (FY) 
2015-2018, the Native Youth Community Projects, the applicant, whether 
an LEA, a Tribe, or a Tribal organization, designed the objectives and 
services and arranged to provide those services. The proposed priority 
would include parents and families in the decision-making process by 
providing them with a choice of services or of service providers, 
consistent with the statutory provision in section 6121(d)(3) of the 
ESEA that requires all applicants for Demonstration Grants to describe 
how parents and families of Indian children will be involved in 
developing and implementing the activities in each project.
    The proposed priority would give to Tribes and other grantees the 
ability to select local entities that can provide high-quality services 
to students. The grantee would enter into a contract with these 
providers and oversee the providers to ensure quality. Parents would 
then select the specific service(s) and provider(s) for their child. 
The grantee would also establish a process by which a parent may 
request a service or provider not specifically offered. The process 
would include a response, in writing, from the grantee to the parent if 
such a request cannot be accommodated, which must explain the reason 
for denying the request, as further described in new Sec.  263.25.
    We are not proposing to remove any of the existing priorities from 
the regulations. The new proposed priority would be added to the 
regulations to provide an additional option from which the Department 
may choose, for any competition under the Demonstration Grants program. 
Because the purpose of the Demonstration Grants program is to test and 
demonstrate the effectiveness of various programs in improving 
education opportunities and achievement of Indian children and youth, 
adding this proposed priority would provide a new way to potentially 
improve outcomes and may provide the Department with new information to 
disseminate to the field to inform future local efforts to improve 
students' outcomes. The details of this proposed priority, as reflected 
in these proposed regulations, were informed by the Tribal 
consultations held on this topic.

What are the application requirements for these grants? (Sec.  263.22)

    Statute: ESEA section 6121 includes four specific application 
requirements, in addition to other assurances and information as the 
Secretary may reasonably require.
    Current Regulations: Section 263.22 contains the statutory 
application requirements.
    Proposed Regulations: We propose to add two application 
requirements in new Sec.  263.22(b)(4) that could be used in any year, 
although they are designed to accompany the proposed priority for 
educational choice. Under the first proposed application requirement, a 
non-Tribal applicant would be required to partner with a Tribe or 
Tribal organization in order to receive a grant; if 50 percent or more 
of the students to be served are from one Tribe, the application must 
include that Tribe as a partner. If the majority of students are from 
different Tribes, however, then the applicant could choose as a partner 
a single local Tribe, local or national

[[Page 17800]]

Tribal organization, a TCU, or a BIE-funded school. Under the second 
proposed application requirement, an applicant would be required to 
include in its application a plan for how the applicant will oversee 
service providers and ensure that students are receiving high-quality 
services under the project.
    Reasons: We agree with the input received from Tribes during 
consultation that, in order to maximize opportunities for Tribal 
sovereignty, projects that serve Native students must include a Tribal 
partner. We propose the 50 percent cutoff for Tribal affiliation in 
order to provide clear guidance for applicants that are not Tribes 
regarding when they are required to partner with a specific Tribe. We 
chose 50 percent because that is the percentage of the school district 
enrollment that is set forth in section 8538 of the ESEA to distinguish 
school districts that must consult with Tribes from those that do not. 
To the extent that certain areas lack local Tribal organizations, we 
acknowledge that an applicant might need to partner with a national 
Tribal organization. We propose the requirement that applicants provide 
a plan to oversee service providers in order to ensure that applicants 
carry out their oversight responsibilities and that students receive 
high-quality services.

How does the Secretary evaluate applications for the Demonstration 
grant program? (Sec.  263.24)

    Statute: ESEA section 6121 does not include selection criteria.
    Current Regulations: The current regulations do not include 
selection criteria for this program.
    Proposed Regulations: Proposed Sec.  263.24 would add three 
selection criteria, for this program. Under the selection criterion 
relating to project services, we propose three selection factors. The 
proposed selection factor in Sec.  263.24(a)(1), which would be 
specific to the priority for educational choice, would allow us to 
evaluate an application based on the extent to which the project would 
offer high-quality choices of services, including culturally relevant 
services, and providers that build on existing options. The second and 
third proposed selection factors could be applied regardless of which 
priority is used: the factor in Sec.  263.24(a)(2) would require 
applicants to describe the extent to which the services to be offered 
meet the needs of the local population, as demonstrated by an analysis 
of community-level data, including input from students and/or parents; 
the factor in Sec.  263.24(a)(3) would allow applications to be judged 
on the quality of their response to the statutory provision in section 
6121(d)(3) of the ESEA regarding evidence-based projects. The 
definition of ``evidence-based'' in section Sec.  77.1 would apply; 
this definition includes all four levels of evidence: strong, moderate, 
and promising evidence as well as evidence that demonstrates a 
rationale. The definition of ``demonstrates a rationale'' in the same 
section clarifies that it ``means a key project component included in 
the project's logic model is informed by research or evaluation 
findings that suggest the project component is likely to improve 
relevant outcomes.'' Accordingly, an applicant may provide a logic 
model for the proposed project, including at least one component 
informed by research, and receive points under this proposed criterion.
    We propose four selection factors under the criterion relating to 
project design. One proposed factor could be used with any priority and 
would allow us to evaluate applicants based on the extent to which 
their project is designed to improve student and parent satisfaction 
with the student's overall education experience through pre- and post-
project data. Two of the proposed factors would be specific to the 
priority for educational choice and would ask applicants to describe 
(1) their process for selecting providers and (2) their method for 
informing parents of the choices available to them. The fourth proposed 
factor would allow us to evaluate the quality of the applicant's plan 
to oversee service providers and ensure that students are receiving 
high-quality services under the project.
    Finally, we propose a selection criterion relating to 
reasonableness of budget, with two sub criteria. The first relates to 
the reasonableness of the proposed per-pupil amount for services in 
relation to the project objectives, and the second concerns the 
transparency of those per-pupil costs for parents.
    Reasons: By establishing in the regulations selection factors that 
are tailored to the needs of Tribal applicants, the Department would 
have the ability to choose, in any grant competition, from the unique 
selection criteria established through these proposed regulations as 
well as from the general selection criteria in 34 CFR 75.210.

What are the program requirements when the Secretary uses the priority 
for educational choice in Sec.  263.21(c)(7)? (Sec.  263.25)

    Statute: ESEA section 6121 does not address educational choice.
    Current Regulations: The current regulations do not address 
educational choice.
    Proposed Regulations: Proposed Sec.  263.25 would add eight 
requirements that would apply to any competition in which the Secretary 
uses the proposed priority for educational choice. Section 263.25(a) 
would require grantees to choose a project focus and specific service 
providers that are based on the needs of the local community. In Sec.  
263.25(b) we propose to require grantees to offer more than one 
education-related option for services from among the twelve listed in 
that paragraph. Multiple service providers may address a single 
education-related option. Separately, we propose in Sec.  263.26(d) to 
require multiple service providers, including service providers that 
are not the applicant, though the applicant may also provide services. 
We propose in Sec.  263.25(c) to ensure that all services would 
supplement and not supplant existing services and funding sources.
    We further propose in Sec.  263.26(d) to require grantees to 
establish a method through which parents could select from various 
services and providers tailored to the project objective. The service 
selection method could not include direct financial transfers to 
parents. Grantees would also be required under proposed Sec.  263.25(e) 
to have a system in place for parents to advocate for services their 
children need, such as a parent feedback process, that would require 
the grantee to provide a written explanation for not providing the 
requested service; the explanations would need to be provided within 
thirty (30) days.
    We also propose in Sec.  263.25(f) a requirement that grantees 
enter into a written agreement with each service provider under the 
project, and that the agreement include a nondiscrimination clause, 
including a provision prohibiting the provider from discriminating 
against Indian students who are eligible for services under this 
program on the basis of affiliation with a particular Tribe. The 
agreement would also be required to contain a description of the 
oversight to be provided by the grantee, a description of how students' 
progress will be measured, and provide for the termination of the 
agreement if the provider is unable to meet the terms of the agreement.
    In the event that the number of requests from parents of eligible 
students for services under the project exceeds the available capacity, 
we would require in proposed Sec.  263.25(g) that the grantee or 
provider include a fair and documented process to choose students to be 
served, such as a lottery,

[[Page 17801]]

or another transparent set of consistently-applied criteria, such as 
first-come, first-served, or need-based criteria.
    Finally, we propose in Sec.  263.25(h) to require grantees to spend 
at least 80 percent of their grant funds on direct services to eligible 
students. If applicants propose a planning year in the first year of 
the grant, this 80 percent limit would not apply to that first year. 
Grantees would also be prohibited from spending more than 15 percent of 
grant funds on the service selection method or the parent involvement 
and feedback process described in paragraph (e) of this section. If an 
applicant proposes a planning year in the first year of the grant, this 
15 percent limit would not apply to that first year.
    Reasons: We propose to require that services be based on local 
needs because we heard from Tribes that it is important that projects 
be tailored to the unique needs of each community. We propose the 
requirement that grantees offer more than one specific service to 
ensure that families have adequate choices. We propose to require that 
services supplement existing options in the community to ensure that 
these funds are not used to supplant other funding sources that already 
exist. We propose to require a service selection method to help ensure 
that grantees have a carefully planned administrative system through 
which parents can access the services. It is important that grant funds 
go only to service providers and not the parents, as there will be an 
agreement with service providers that includes expectations for 
reporting activities and financial oversight. We propose to require a 
system for parent input, in response to suggestions from Tribal 
consultation, to ensure that parent voices are heard and responded to 
with regard to quality of services, the administrative convenience of 
the system, choice of providers and specific services, and other 
matters. This system must include a mechanism by which parents can 
request specific services or providers and receive responses in writing 
indicating the reason for denying any request the grantee cannot 
satisfy.
    We propose to require that grantees enter into written agreements 
with each provider to ensure that grantees have the necessary 
programmatic and fiscal oversight of all services under the project and 
that grantees and providers are held accountable to the terms of the 
agreement. In addition, the proposed requirement that agreements 
include a nondiscrimination clause, including a provision prohibiting 
the service provider from giving priority to members of one Tribe over 
another, is designed to ensure that all American Indian and Alaska 
Native students who are eligible for services under this program 
(pursuant to the definition of Indian in ESEA section 6151) have an 
equal opportunity to obtain services. We propose the requirement of a 
fair and documented selection process, such as a lottery, to ensure 
there would be no favoritism in choosing which students are included in 
the project.
    We propose that at least 80 percent of grant funds be used for 
direct services so that most of the grant funds are used to support 
services for students, not to implement the service selection process. 
Under the proposed rule, grantees could use up to 15 percent of the 
award for the service selection method or the parent involvement and 
feedback process. We propose that the 80 percent requirement would not 
apply in the planning year, if the grantee requests and obtains 
permission for the first year of the grant to be used for planning, 
because we understand that setting up a service selection method can 
require a large amount of funds at the start of the grant that would 
not be continued in subsequent years. Thus, if a grantee uses the first 
year of the grant as a planning year, it will not have its costs 
limited to a total of 20 percent of the grant for the service selection 
method, its indirect cost rate, and its direct administrative costs, as 
will be the case in future grant years.

Technical Changes

    We are also making minor technical changes to these program 
regulations, some of which are required to align the regulations with 
the ESEA, as amended by ESSA. The technical changes to align the 
regulations with the ESSA amendments to title VI of ESEA are as 
follows:
    1. We add ``and youth'' to the name of the program in the title for 
subpart B of part 263, in the title of Sec.  263.20, and in the 
definitions in Sec.  263.20, to align with ESEA section 6121(a)(1).
    2. In Sec.  263.20, we delete the definition of ``Indian 
institution of higher education'' and replace it with the statutory 
definition of ``Tribal college or university,'' and make conforming 
changes to Sec.  263.21, in alignment with ESEA section 6121(b).
    3. In Sec.  263.22, we add to the application requirements the 
expansion from involvement of parents to include family members, and we 
change ``scientifically-based'' to ``evidence-based,'' in alignment 
with ESEA section 6121(d)(3)(B).

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

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

[[Page 17802]]

    (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 regulations 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 regulations 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.

Discussion of Costs and Benefits

    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. The potential 
costs associated with the proposed priorities and requirements would be 
minimal, while the potential benefits are significant.
    We have determined that these proposed regulations would impose 
minimal costs on eligible applicants. Program participation is 
voluntary, and the costs imposed on applicants by these proposed 
regulations would be limited to paperwork burden related to preparing 
an application. The potential benefits of implementing the programs--
for example, expanding the choices available to parents and students, 
and improving access to services such as Native language programs or 
providing new internship or apprenticeship programs--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.
    Elsewhere in this section under Paperwork Reduction Act of 1995, we 
identify and explain burdens specifically associated with information 
collection requirements.

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 
regulations 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? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
``Sec.  263.2 What definitions apply to the Demonstration Grants for 
Indian Children and Youth program?'')
     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 these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. The small entities that would be affected by these 
regulations are LEAs, TCUs, Tribes, Indian organizations, and BIE-
funded schools receiving Federal funds under this program. The proposed 
regulations would not have a significant economic impact on the small 
entities affected because the regulations would not impose excessive 
regulatory burdens or require unnecessary Federal supervision. 
Participation in the Demonstration Grant program is voluntary and 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. We note that 
those grantees that would be subject to the minimal requirements that 
these proposed regulations would impose would be able to meet the costs 
of compliance using Federal funds provided through the Indian Education 
Demonstration Grant program.
    However, the Secretary specifically invites comments on the effects 
of the proposed regulations on small entities, and on whether there may 
be further opportunities to reduce any potential adverse impact or 
increase potential benefits resulting from these proposed regulations 
without impeding the effective and efficient administration of the 
Indian Education Demonstration Grant program. Commenters are requested 
to describe the nature of any effect and provide empirical data and 
other factual support for their views to the extent possible.

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information, in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are

[[Page 17803]]

clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    Proposed Sec. Sec.  263.22 (Application Requirements) and 263.24 
(Selection Criteria) contain information collection requirements (ICR) 
for the program application package. As a result of the proposed 
revisions to these sections, we would transfer the grant application 
package information collection burden from 1810-0722 to 1894-0006, 
resulting in discontinuation of 1810-0722. In Table 1 below, we assume 
100 applicants each spend 30 hours preparing their applications.

                                           Table 1--Demonstration Grants Program Information Collection Status
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Current burden (total     Proposed burden     Proposed action under
      OMB control No.         Relevant regulations             Expiration                    hours)             (total hours)            final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
1810-0722..................  Proposed Sec.  Sec.     07/31/2021....................  For Applicants: 4,000  0....................  Discontinue by 07/31/
                              263.22 and 263.24.                                      hours.                                        2021.
1894-0006..................  Proposed Sec.  Sec.     January 31, 2021..............  0....................  Applicants: 3,000      Obtain approval under
                              263.22 and 263.24.                                                             hours.                 1894-0006.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    If your comments relate to the ICR for these proposed regulations, 
please specify the Docket ID number and indicate ``Information 
Collection Comments'' on the top of your comments.
    Written requests for information or comments, submitted by postal 
mail or delivery, related to the information collection requirements 
should be addressed to the Director of the Information Collection 
Clearance Program, U.S. Department of Education, 550 12th Street SW, 
Room 9086, Washington, DC 20202.
    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 Education 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 portable document format PDF. To 
use PDF, you must have Adobe Acrobat Reader, which is available for 
free on 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.

(Catalog of Federal Domestic Assistance Number: 84.299A 
Demonstration Grants for Indian Children and Youth Program.)

List of Subjects in 34 CFR Part 263

    Business and industry, Colleges and Universities, Elementary and 
secondary education, Grant programs--education, Grant programs--
Indians, Indians--education, Reporting and recordkeeping requirements, 
Scholarships and fellowships.

Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.

    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend part 263 of title 34 of the Code of the 
Federal Regulations as follows:

0
1. The authority citation for Part 263 continues to read as follows:

    Authority:  20 U.S.C. 7441, unless otherwise noted.

0
2. The title of subpart B is revised to read as follows:

Subpart B--Demonstration Grants for Indian Children and Youth 
Program

0
3. Section 263.20 is amended by:
0
a. In the section heading, adding the words ``and Youth'' after the 
word ``Children'';
0
b. Removing the definition of ``Indian institution of higher 
education'';
0
c. In paragraph (6)(i) of the definition of ``Native Youth community 
project'', adding the words ``and Youth'' after the word ``Children'';
0
d. Adding a definition of ``Parent'';
0
e. In the definition of ``Professional development activities'', adding 
the words ``and Youth'' after the word ``Children''; and
0
f. Adding in alphabetical order a definition for ``Tribal College or 
University (TCU)''.
    The additions read as follows:


Sec.  263.20   What definitions apply to the Demonstration Grants for 
Indian Children and Youth program?

* * * * *
    Parent includes a legal guardian or other person standing in loco 
parentis (such as a grandparent or stepparent with whom the child 
lives, or a person who is legally responsible for the child's welfare).

[[Page 17804]]

    Tribal College or University (TCU) means an accredited college or 
university within the United States cited in section 532 of the Equity 
in Educational Land-Grant Status Act of 1994, any other institution 
that qualifies for funding under the Tribally Controlled College or 
University Assistance Act of 1978, and the Navajo Community College, 
authorized in the Navajo Community College Assistance Act of 1978.
0
4. Section 263.21 is amended by:
0
a. In paragraph (a), removing the number ``7121(c)'' and adding, in its 
place, the number ``6121(c)'';
0
b. In paragraph (b)(1), adding the words ``school funded by the Bureau 
of Indian Education,'' after the words ``Indian organization,'' each 
time they appear, and removing the words ``Indian institution of higher 
education'' and replacing them with ``TCU'' each time they appear;
0
c. In paragraph (b)(2)(i), adding the words ``school funded by the 
Bureau of Indian Education,'' after the words ``Indian organization,'' 
each time they appear, and removing the words ``Indian institution of 
higher education'' and replacing them with ``TCU''.
0
d. In paragraph (c)(3), removing the number ``7116'' and adding, in its 
place, ``6116'';
0
e. In paragraph (c)(4), removing the number ``7121(c)'' and adding, in 
its place, the number ``6121(c)'';
0
f. Revising paragraph (c)(5)(i) and (ii); and
0
g. Adding paragraphs (c)(6) and (7).
    The revision and additions read as follows:


Sec.  263.21   What priority is given to certain projects and 
applicants?

* * * * *
    (c) * * *
    (5) * * *
    (i) An LEA that is eligible under the Small Rural School 
Achievement (SRSA) program or the Rural and Low-Income School (RLIS) 
program authorized under title V, part B of the ESEA; or
    (ii) A BIE-funded school that is located in an area designated with 
locale code of either 41, 42, or 43 as designated by the National 
Center for Education Statistics.
    (6) Non-rural projects that do not meet the priority in paragraph 
(c)(5) of this section. This priority can only be used in competitions 
where the priority in paragraph (c)(5) of this section is also used.
    (7) Projects to expand educational choice by enabling a Tribe, or 
the grantee and its Tribal partner, to select a project focus that 
meets the needs of their students and enabling parents of Indian 
students, or the student, to choose education services by selecting the 
specific service and provider desired.
* * * * *
0
5. Section 263.22 is amended by:
0
a. Revising paragraphs (a)(1) and (3).
0
b. Adding paragraphs (b)(4) and (5).
    The revision and addition read as follows:


Sec.  263.22   What are the application requirements for these grants?

    (a) * * *
    (1) A description of how Indian Tribes and parents and families of 
Indian children and youth have been, and will be, involved in 
developing and implementing the proposed activities;
    (2) * * *
    (3) Information demonstrating that the proposed project is 
evidence-based, where applicable, or is based on an existing evidence-
based program that has been modified to be culturally appropriate for 
Indian students;
* * * * *
    (b) * * *
    (4) A plan for how the applicant will oversee service providers and 
ensure that students receive high-quality services under the project.
    (5) For an applicant that is not a Tribe--
    (i) If 50 percent or more of the student body to be served consists 
of members of one Tribe, the applicant must include that Tribe as a 
documented partner for the proposed project; or
    (ii) If less than 50 percent of the student body to be served 
consists of members of one Tribe, the applicant must include a local 
Tribe, local or national Tribal organization, TCU, or BIE-funded school 
as a documented partner for the proposed project.
0
6. Revising the authority citation to Sec.  263.23 to read as follows:

(Authority: 25 U.S.C. 5304, 5307)

0
7. Adding Sec.  263.24 to read as follows:


Sec.  263.24   How does the Secretary evaluate applications for the 
Demonstration Grants for Indian Children and Youth grants program?

    The Secretary uses the procedures in 34 CFR 75.200 through 75.210 
to establish the selection criteria and factors used to evaluate 
applications submitted in a grant competition for the Demonstration 
Grants for Indian Children and Youth program. The Secretary may also 
consider one or more of the criteria and factors in paragraphs (a) and 
(b) of this section to evaluate applications.
    (a) Quality of project services. The Secretary considers one or 
more of the following factors in determining the quality of project 
services:
    (1) The extent to which the project would offer high-quality 
choices of services, including culturally relevant services, and 
providers, for parents and students to select.
    (2) The extent to which the services to be offered would meet the 
needs of the local population, as demonstrated by an analysis of 
community-level data, including direct input from parents and families 
of Indian children and youth.
    (3) The extent to which the services to be offered are evidence-
based.
    (b) Quality of the project design. The Secretary considers one or 
more of the following factors in determining the quality of the project 
design:
    (1) The extent to which the project is designed to improve student 
and parent satisfaction with the student's overall education 
experience, as measured by pre- and post-project data.
    (2) The extent to which the applicant proposes a fair and neutral 
process of selecting service providers that will result in high-quality 
options from which parents and students can select services.
    (3) The quality of the proposed plan to inform parents and students 
about available service choices under the project, and about the 
timeline for termination of the project.
    (4) The quality of the applicant's plan to oversee service 
providers and ensure that students receive high-quality services under 
the project.
    (c) Reasonableness of budget. The Secretary considers one or more 
of the following factors in determining the reasonableness of the 
project budget:
    (1) The extent to which the budget reflects the number of students 
to be served and a per-pupil amount for services, not including funds 
for project administration, that is reasonable in relation to the 
project objectives; and
    (2) The extent to which the per-pupil costs of specific services 
and per-pupil funds available are transparent to parents and other 
stakeholders.
0
8. Adding Sec.  263.25 to read as follows:


Sec.  263.25   What are the program requirements when the Secretary 
uses the priority in Sec.  263.21(c)(7)?

    In any year in which the Secretary uses the priority in Sec.  
263.21(c)(7) for a competition, each project must--
    (a) Include the following, which are chosen by the grantee, or the 
grantee and its partnering Tribe if the grantee is not a Tribe:
    (1) A project focus and specific services that are based on the 
needs of the local community; and
    (2) Service providers;

[[Page 17805]]

    (b) Include more than one education option from which parents and 
students may choose, which may include--
    (1) Native language, history, or culture courses;
    (2) Advanced, remedial, or elective courses, which may be online;
    (3) Apprenticeships or training programs that lead to industry 
certifications;
    (4) Concurrent and dual enrollment;
    (5) Tuition for private school or home education expenses;
    (6) Special education and related services that supplement, and are 
not part of, the special education and related services, supplementary 
aids and services, and program modifications or supports for school 
personnel required to make available a free appropriate public 
education (FAPE) under Part B of the Individuals with Disabilities 
Education Act (IDEA) to a child with a disability in conformity with 
the child's individualized education program (IEP) or the regular or 
special education and related aids and services required to ensure FAPE 
under Section 504 of the Rehabilitation Act of 1973 (Section 504);
    (7) Books, materials, or education technology, including learning 
software or hardware that are accessible to all children;
    (8) Tutoring;
    (9) Summer or afterschool education programs, and student 
transportation needed for those specific programs. Such programs could 
include instruction in the arts, music, or sports, to the extent that 
the applicant can demonstrate that such services are culturally related 
or are supported by evidence that suggests the services may have a 
positive effect on relevant education outcomes;
    (10) Testing preparation and application fees, including for 
private school and graduating students;
    (11) Supplemental counseling services, not to include psychiatric 
or medical services; or
    (12) Other education-related services that are reasonable and 
necessary for the project;
    (c)(1) Provide additional services that are supplemental to the 
education program provided by local schools attended by the students to 
be served;
    (2) Ensure that funding is supplemental to existing sources, such 
as Johnson O'Malley funding; and
    (3) Ensure that the availability of funds for supplemental special 
education and related services (i.e., services that are not part of the 
special education and related services, supplementary aids and 
services, and program modifications or supports for school personnel 
that are required to make FAPE available under Part B of the IDEA to a 
child with a disability in conformity with the child's IEP or the 
regular or special education and related aids and services required to 
make FAPE available under a Section 504 plan, if any) does not affect 
the right of the child to receive FAPE under Part B of the IDEA or 
Section 504, and the respective implementing regulations;
    (d) Provide a method to enable parents and students to select 
services. Such a method must--
    (1) Ensure that funds will be transferred directly from the grantee 
to the selected service provider;
    (2) Include service providers other than the applicant, although 
the applicant may be one of the service providers; and
    (3) Be supplemental to any existing service selection method;
    (e) Include a parent involvement and feedback process that:
    (1) Describes a way for parents to request services or providers 
that are not currently offered and provide input on services provided 
through the project, and describes how the grantee will provide parents 
with written responses within thirty days; and
    (2) May include a parent liaison to support the grantee in outreach 
to parents and assist parents and the grantee with the process by which 
a parent can request services or providers not already specified by the 
grantee.
    (f) Include a written agreement between the grantee and each 
service provider under the project. The agreements must include--
    (1) A nondiscrimination clause that--
    (i) Requires the provider to abide by all applicable 
non[hyphen]discrimination laws with regard to students to be served, 
e.g., on the basis of race, color, national origin, religion, sex, or 
disability; and
    (ii) Prohibits the provider from discriminating among students who 
are eligible for services under this program, i.e., that meet the 
definition of ``Indian'' in section 6151 of the ESEA, on the basis of 
affiliation with a particular Tribe;
    (2) A description of how the grantee will oversee the service 
provider and hold the provider accountable for--
    (i) The terms of the written agreement; and
    (ii) The use of funds, including compliance with generally accepted 
accounting procedures and Federal cost principles;
    (3) A description of how students' progress will be measured; and
    (4) A provision for the termination of the agreement if the 
provider is unable to meet the terms of the agreement;
    (g) Include a fair and documented process to choose students to be 
served, such as a lottery or other transparent criteria (e.g., based on 
particular types of need), in the event that the number of requests 
from parents of eligible students for services under the project 
exceeds the available capacity, with regard to the number or intensity 
of services offered; and
    (h) Ensure that--
    (1) At least 80 percent of grant funds are used for direct services 
to eligible students, provided that, if a grantee requests and receives 
approval for the first year of its grant to be a planning year, the 80 
percent requirement does not apply to that planning year; and
    (2) Not more than 15 percent of grant funds are used on the service 
selection method described in paragraph (d) of this section or the 
parent involvement and feedback process described in paragraph (e) of 
this section, except in an authorized planning year.
[FR Doc. 2020-06224 Filed 3-30-20; 8:45 am]
 BILLING CODE 4000-01-P