[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Proposed Rules]
[Pages 79824-79830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28222]



[[Page 79824]]

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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2022-OESE-0151]


Proposed Priorities, Requirements, and Definitions--State Tribal 
Education Partnership Program

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

ACTION: Proposed priorities, requirements, and definitions.

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SUMMARY: The Department of Education (Department) proposes priorities, 
requirements, and definitions under the State Tribal Education 
Partnership (STEP) program, Assistance Listing Number (ALN) 84.415A. 
The Department may use one or more of these priorities, requirements, 
and definitions for competitions in fiscal year (FY) 2023 and later 
years. The Department is taking this action to support the development 
of partnerships among Tribal education agencies (TEAs), State 
educational agencies (SEAs), and local educational agencies (LEAs) to 
support the creation or expansion of TEAs to directly administer 
education programs, including formula grant programs under the 
Elementary and Secondary Education Act of 1965, as amended (ESEA), 
consistent with State law and under a written agreement among the 
parties.

DATES: We must receive your comments on or before January 27, 2023.

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at regulations.gov. However, if you require an accommodation or 
cannot otherwise submit your comments via regulations.gov, please 
contact the program contact person listed under FOR FURTHER INFORMATION 
CONTACT. The Department will not accept comments by fax or by email, or 
comments submitted after the comment period closes. To ensure that the 
Department does not receive duplicate copies, please submit your 
comments only once. Additionally, please include the Docket ID at the 
top of your comments.
    Federal eRulemaking Portal: Go to 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 
``FAQ.''
    Privacy Note: The Department's policy is to generally make all 
comments received from members of the public available for public 
viewing in their entirety on the Federal eRulemaking Portal at 
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: Donna Bussell, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3W207, Washington, DC 20202-
6450. Telephone (202) 987-0204. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
the proposed priorities, requirements, and definitions. To ensure that 
your comments have maximum effect in developing the final priorities, 
requirements, and definitions, we urge you to clearly identify the 
specific section of the proposed priority, requirement, or definition 
that each comment addresses.
    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 priorities, requirements, and definitions. 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 the program.
    During and after the comment period, you may inspect public 
comments about the proposed priorities, requirements, and definitions 
by accessing Regulations.gov. To inspect comments in person, 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 this document. 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 purpose of the STEP program is to: promote 
Tribal self-determination in education; improve the academic 
achievement of Indian children and youth; and promote the coordination 
and collaboration of TEAs with SEAs and LEAs to meet the unique 
educational and culturally related academic needs of Indian students.
    Program Authority: Section 6132 of the ESEA (20 U.S.C. 7452).
    Tribal Consultation: The following proposed priorities, 
requirements, and definitions were informed by Tribal consultation with 
elected Tribal leaders or their officially designated proxies. The 
Department held virtual Tribal consultations on April 26, 2021 and June 
30, 2022, and announced the opportunities through various external 
community listservs. The Department sought feedback from elected Tribal 
leaders on a series of topics and 12 questions to inform the design of 
future STEP competitions. They are as follows:
    First, the Department requested input on the length of grant 
performance periods, specifically if Tribal Nations were interested in 
longer grant performance periods (e.g., one year versus three years). 
The majority of Tribal leaders who provided input were in favor of 
three-year grants and provided written comments expressing the need for 
additional time to complete grants to create TEAs. Tribal leaders were 
also in favor of the Department awarding more grants to expand TEAs. 
The Department will factor in this Tribal leader input during the 
development of future notices inviting applications. The grant period 
is specified in statute, subject to amendment by congressional 
appropriation and is not directly addressed by this document.
    Second, the Department requested input on whether Tribal Nations 
are more interested in working partnerships with SEAs or LEAs. The 
majority of Tribal leader comments expressed the perspective that those 
partnerships should include both SEAs and LEAs and should be rooted in 
Tribal consultation at the local level. Tribal leaders also supported 
the need for partnerships to include both entities. In response to the 
comments, the Department is proposing Priority 3 to enhance Tribal 
consultation at the local level and encourage trilateral working 
relationships among TEAs, SEAs, and LEAs.
    Third, the Department requested input from Tribal Nations on 
whether resources should be targeted toward coordinating staff, 
curriculum, or other existing grant opportunities. The majority of 
Tribal leader input expressed the need to coordinate curriculum 
development and existing grant opportunities. Other participants 
supported targeting grant resources to

[[Page 79825]]

funding the hiring of TEA staff. In response to the comments, the 
Department is proposing Priority 2 to increase coordination with ESEA 
title VI, part A formula programs. Coordinating with title VI, part A 
formula programs will help ensure TEAs have a proactive role in 
contributing to determining the best use of educational resources and 
can help strengthen the ability of TEAs and LEAs to train and retain 
respective program staff.
    Fourth, the Department requested Tribal Nations to identify the 
supports needed to create a new TEA. The majority of Tribal leader 
input expressed the need to identify and expand Tribal services and to 
identify off-reservation students. Other participants expressed that 
all Tribal Nations need to finance a new TEA with Tribal funding and 
consolidate education-related services into one agency. In response to 
the comments, the Department is proposing Priority 1 to improve 
visibility and identification of Indian children and youth in public 
education data.
    Fifth, the Department requested input from Tribal Nations on 
whether developing Tribal education regulatory codes is necessary for 
creating a TEA. The majority of Tribal leader input expressed that 
Tribal education codes are not necessary to create a new TEA. Other 
participants expressed interest in seeing examples of Tribal education 
codes. In response to the comments, the Department is proposing to not 
include Tribal education codes for the creation of a ``new TEA''. 
Education codes are still included in the definition of an 
``established TEA'' in this document. Examples of Tribal education 
codes may be shared during pre-application technical assistance 
webinars.
    Sixth, the Department requested input from Tribal Nations on 
whether creating a new TEA required more than a one-year performance 
period. The majority of Tribal leader input expressed that creating a 
new TEA requires more than one year and may take anywhere from two to 
three years. In response to the comments, the Department will factor in 
this Tribal leader input during the development of future notices 
inviting applications to the degree permissible by law.
    Seventh, the Department requested input from Tribal Nations on 
whether there should be requirements, in addition to those in past 
competitions, for future STEP grants to create a TEA. The majority of 
Tribal leaders expressed the need for projects to include a 
comprehensive plan to implement non-direct services. The plan should 
align with Tribal needs and priorities. Other participants expressed 
that applicants or grantees, as appropriate, should be required to 
assess educational infrastructure needs, evaluate SEA and LEA training 
and other services provided to the TEA, and improve access to 
professional development opportunities for TEA leaders. In response to 
the comments, the Department will factor in this Tribal leader input 
during the development of future competitions to the degree permissible 
by law.
    Eighth, the Department requested input from Tribal Nations on how 
to define ``capacity building'' as it relates to expanding or creating 
a TEA. The majority of Tribal leaders expressed that the definition 
needs to be specified in the final agreement with the SEA and LEA. 
Other participants recommended that the Department define ``capacity 
building'' as the ability to authorize teaching certifications. The 
Department has addressed the input on capacity building by including 
authorization of teaching certifications as one of the criteria within 
the definition of ``established TEA'' in this document.
    Ninth, the Department requested input from Tribal Nations on 
whether they are interested in collaborating with SEAs to develop, 
monitor, and evaluate effective culturally responsive practices. No 
Tribal leaders or other participants provided input on the question.
    Tenth, the Department requested input from Tribal Nations on 
whether they are interested in collaborating with LEAs to develop, 
monitor, and evaluate effective culturally responsive practices. The 
majority of Tribal leader input and other participants were in favor of 
TEAs and LEAs working together in this way. Tribal leader input 
expressed that TEAs should work with at least three LEAs that are 
required to engage in local Tribal consultation as described in section 
8538(a) of the ESEA. In response to the comments, the Department is 
proposing Priority 3 to encourage more frequent consultation between an 
affected LEA and TEA. The Department is not requiring consultation with 
at least three LEAs due to the likelihood that a TEA may not have the 
capacity to maintain an ongoing relationship with three LEAs who meet 
the definition of ``Affected LEA'' in this document.
    Eleventh, the Department requested input from Tribal Nations on 
whether training from the SEA to the TEA should be targeted toward data 
collection and analysis; grants management and monitoring; fiscal 
accountability; and/or other training needs. Tribal leaders were asked 
to prioritize by rank order. The majority of Tribal leader input 
expressed the need for focused training on data collection, data 
analysis, grants management, and monitoring, in that order. Other 
participants were in favor of more training regarding fiscal 
accountability. In response to the comments, the Department will factor 
in the need for training regarding data collection and analysis, grants 
management, and monitoring. In addition, proposed Priority 1, which is 
designed to address the under-identification of Indian students in 
public education data, reflects the importance of data collection and 
analysis for STEP projects. Through projects that address proposed 
Priority 1, Tribal Nations that want to exercise more self-
determination in public education could assist LEAs in the improvement 
of data collection and analysis with a specific focus on improved 
identification of Indian students.
    Twelfth, the Department requested input from Tribal Nations 
regarding which priorities should be considered in the next 
competition. Tribal leaders expressed that STEP grants should advance 
and support local Tribal consultation practices, especially for TEAs 
that have at least three LEAs required to conduct local Tribal 
consultation under ESEA section 8538(a). Other participants indicated 
that future priorities should include support for Tribal Nations to 
authorize Tribal schools. In response to the comments, the Department 
does not propose a priority specifically for authorizing tribal 
schools, however, it does continue to support the creation of new TEAs 
which may include Tribal schools. The Department proposes Priority 4 
for Tribal Nations that have not received a STEP grant from the 
Department. Additionally, the Department proposes Priority 3 to have 
STEP grants support local Tribal consultation practices.
    Proposed Priorities:
    This document contains the following seven proposed priorities:
    Proposed Priority 1--Improve Identification of Native Students in 
Public Education Data.
    Proposed Priority 2--Increase Coordination of Indian Education 
Programs.
    Proposed Priority 3--Enhance Tribal Consultation.
    Proposed Priority 4--New STEP Grantees.
    Proposed Priority 5--Create TEA.
    Proposed Priority 6--Expand Early TEA.
    Proposed Priority 7--Expand Established TEA.

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    Background: In FY 2012, the Department piloted the first cohort of 
STEP grants to TEAs to promote increased collaboration between TEAs and 
SEAs in the administration of certain State-administered ESEA formula 
grant programs and build the capacity of TEAs to conduct certain State-
level administrative functions under those programs for eligible 
schools located on a reservation. By the beginning of the second year 
of their 3-year projects, all four STEP pilot grantees had assumed at 
least one State-level function, with two grantees assuming two 
functions, for a total of six State-level functions. In FY 2015, the 
Department awarded another cohort of STEP grants to TEAs to promote 
increased collaboration between TEAs and the SEAs and LEAs that serve 
students from the affected Tribes, and to build the capacity of TEAs to 
conduct certain administrative functions under certain ESEA formula 
grant programs for eligible schools, as determined by the TEA, SEA, and 
LEA. By the beginning of the second year of their projects, all five 
STEP grantees assumed SEA- or LEA-level functions, as described in 
their final agreements. STEP was included specifically in the 2015 
reauthorization of the ESEA, and by statute includes two types of 
grants: grants that support establishing new TEAs and grants for 
expanding TEA capacity. The ESEA set out grant periods for each type of 
grant: one year for establishing new TEAs and three years for expanding 
TEA capacity. In FY 2019, the Department awarded one-year STEP grants 
to Tribes to support Tribes' creation of TEAs so that they would be 
eligible to apply for a three-year STEP grant in future fiscal years. 
That competition included an invitational priority, ``Promoting 
Sustainability through Community Engagement.'' In FY 2020, the 
Department awarded three-year STEP grants to TEAs to directly 
administer education programs, build capacity to administer and 
coordinate education programs, and receive training and support from 
and provide training and support to SEAs and LEAs. The Department 
established three absolute priorities via a waiver of rulemaking for 
the FY 2020 competition. Absolute Priority 1 supported projects to 
build TEA capacity to administer and coordinate education programs; 
Absolute Priority 2 was for established TEAs; and Absolute Priority 3 
was for TEAs with limited prior experience. All applicants were 
required to address Absolute Priority 1. Absolute Priorities 2 and 3 
allowed the Department to consider applications from TEAs with limited 
prior experience separately from applications from TEAs with more 
experience. In FY 2021, the Department conducted Tribal consultation 
with elected Tribal leaders and their proxies to discuss priorities, 
requirements, and definitions for future STEP competitions. For FY 
2022, Congress authorized awards for up to five years for STEP grants 
through the appropriations process.
    Additionally, under section 6132(c)(1) and (2) of the ESEA, the 
Department has authority to give priority to applicants that propose to 
create a new TEA or that propose to expand an existing TEA. Under 
proposed Priorities 5, 6, and 7, the Department prioritizes projects 
that create ``new TEAs,'' expand capacity of ``early TEAs,'' and expand 
capacity of ``established TEAs'' to help ensure Tribal Nations have 
options to equitably advance Tribal self-determination.
    Proposed Priority 1--Improve Identification of Native Students in 
Public Education Data.
    Background: The Department proposes this priority to assist Tribal 
Nations interested in expanding TEA capacity through coordinating TEA 
and LEA enrollment data. The priority would advance Tribal self-
determination in education by creating a condition for partner SEAs or 
LEAs to better coordinate services and identify students who are 
eligible for other Indian education programs but might not be receiving 
services. Under section 6132(a)(3) of the ESEA, one purpose of the STEP 
program is to ``meet the unique educational and culturally related 
academic needs'' of Indian students. To do so, it is critical that 
Indian students are accurately identified as Indian by the LEA. Limited 
access to meaningful, quality data continues to be a challenge that 
adversely impacts Tribal communities related to the issue of under-
identification of Indian students and subsequently under-resourcing. 
Data are essential for developing effective policies and initiatives to 
generate improved health and other outcomes.\1\ By partnering with 
LEAs, a TEA may disclose a list of students who are tribally enrolled 
and/or affiliated to the LEA and the LEA can match and notify the 
parents regarding Indian education program opportunities, without 
disclosing the identity of eligible students to a TEA. In addition to 
improving delivery of equitable supports for Indian children and youth, 
we believe a collaboration focused on better identification of Indian 
students will build TEA capacity in collecting and analyzing data, 
consistent with Tribal consultation input, and help advance Tribal 
self-determination in public education.
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    \1\ www.ncai.org/DataDisaggregationAIAN-report_5_2018.pdf.
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    Note: The Family Educational Rights and Privacy Act (FERPA) does 
not permit an LEA to disclose personally identifiable information (PII) 
from students' education records to a TEA without parental consent 
unless the disclosure meets one of FERPA's exceptions to the general 
consent requirement. The most relevant exceptions to FERPA's general 
consent requirement that may apply if certain conditions are met are 
the ``school official,'' ``studies,'' and ``audit/evaluation'' 
exceptions. For further information on FERPA, contact the Department's 
Student Privacy Policy Office at https://studentprivacy.ed.gov/.
    Proposed Priority:
    To meet this priority, an applicant must propose to partner with an 
LEA to develop and maintain effective and culturally responsive methods 
to better identify, and support the identification of, Indian students 
who may be undercounted or under-identified as eligible for an ESEA 
title VI formula grant program consistent with section 6112 of the 
ESEA. This includes identifying Indian students who are not enrolled in 
a Tribal Nation but who have affiliation with or descendance from a 
Tribal Nation as described in ESEA section 6117(d).
    Proposed Priority 2--Increase Coordination of Indian Education 
Programs.
    Background: The Department proposes this priority to assist Tribal 
Nations in ensuring that services under existing Indian education 
programs are coordinated as part of a comprehensive approach to serving 
Indian students. TEAs do not have purview over all Indian education 
programs in a given LEA, especially if TEA personnel are not identified 
as the authorized representative of a particular grant award. However, 
TEAs have direct access to cultural resources, methods, and knowledge 
and can provide expertise regarding culturally appropriate ways to 
educate and teach Indian students. One example of how a STEP grantee 
could meet this priority would be for the grantee to coordinate with a 
partner LEA that receives both a Johnson-O'Malley and an ESEA title VI 
Indian Education formula grant on strategies and professional 
development opportunities to further a culturally-appropriate education 
approach that benefits Indian students, TEA, and LEA staff. (Note: 
Consistent with ESEA section 6132(e)(2), STEP grants may not be used 
for direct services.) This

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proposed priority would also help ensure TEAs are working in 
collaboration with LEAs, consistent with section 6132(a) of the ESEA.
    Proposed Priority:
    To meet this priority, an applicant must submit a high-quality plan 
that describes how it will strengthen its partnership with the LEA and/
or SEA, to strengthen coordination among all existing federally funded 
Indian education grants that impact the partner LEA and/or SEA to 
support the academic achievement of Indian students. The plan must 
include goals, milestones, and timelines for coordination, and must 
identify which existing federally funded programs they are 
coordinating.
    Proposed Priority 3--Enhance Tribal Consultation.
    Background: The Department proposes this priority to assist Tribal 
Nations to expand their capacity to participate in, and strengthen, 
local Tribal consultation practices. For example, to address this 
proposed priority, applicants could propose a plan to assist LEAs in 
the effort to obtain consultation affirmations that are meaningful, 
data-driven, and timely. The proposed priority would advance Tribal 
self-determination in education by supporting TEAs to convene 
collaborative meetings with SEAs and LEAs to promote meaningful 
consultation that produces ongoing and timely feedback on federally 
funded education programs that impact Indian students, not just 
programs that serve only Indian students. This proposed priority would 
address Tribal leader interest in seeing a priority that furthers 
collaboration and consultation with affected LEAs that are subject to 
ESEA section 8538 consultation requirements. Affected LEAs subject to 
section 8538 must consult Tribal Nations annually regarding multiple 
Federal programs, and TEAs can help drive more meaningful collaboration 
to support Federal program implementation. The goal of the proposed 
priority is for TEAs to increase the frequency of consultations, 
develop meaningful consultation procedures, and meet goals as defined 
in the respective ESEA Consolidated State and Local Plans.
    Proposed Priority:
    Projects to improve upon existing local Tribal consultation efforts 
with at least one LEA. To meet this priority, applicants must provide a 
high-quality plan that describes how the project will increase the 
frequency of consultations with affected LEAs, meaningfully develop 
consultation procedures with LEAs, and meet SEA goals as defined in the 
respective ESEA Consolidated State and Local Plans.
    Proposed Priority 4--New STEP Grantee.
    Background: In Tribal Consultations held on April 26, 2021 and June 
30, 2022, Tribal leaders requested that the Department move away from 
determining grants on a competitive basis because all Tribes could 
benefit from the STEP program, but some Tribes are not as well 
positioned to compete for the STEP program. However, under 2 CFR 
200.205, the Department must award STEP program grants on a competitive 
basis. The Department proposes this priority to help applicants who 
have not previously received a STEP grant. The proposed priority would 
advance Tribal self-determination in education by assisting TEAs with 
less capacity to be competitive among their peer TEAs.
    Proposed Priority:
    To meet this priority, an applicant must be a new TEA or early TEA 
and must not have previously received a STEP award from the Department.
    Proposed Priority 5--Create a TEA.
    Background: Under section 6132(c)(1) of the ESEA, the Department is 
authorized to make awards to applicants who plan and develop a TEA, if 
the Indian Tribe or organization has no current TEA.
    Proposed Priority:
    To meet this priority, an applicant must not be an early TEA or 
established TEA.
    Proposed Priority 6--Expand Capacity of Early TEAs.
    Background: Under section 6132(c)(2) of the ESEA, the Department is 
authorized to make awards to TEAs to expand their existing capacity.
    Proposed Priority:
    To meet this priority, an applicant must be an early TEA.
    Proposed Priority 7--Expand Capacity of Established TEAs.
    Background: Under section 6132(c)(2) of the ESEA, the Department is 
authorized to make awards to TEAs to expand their existing capacity.
    Proposed Priority:
    To meet this priority, an applicant must be an established TEA.
    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 Requirement:
    Background: The Department proposes the following application 
requirement. Under section 6132(d)(2)(C)(i) of the ESEA, a preliminary 
agreement with the appropriate SEA, one or more LEAs, or both the SEA 
and LEA must be an application requirement. In any competition, the 
Department could use additional statutory application requirements 
consistent with section 6132(d) of the ESEA.
    Proposed Application Requirement 1--Draft Written Agreement with 
Partners.
    An applicant must provide a Draft Written Agreement (DWA), with the 
appropriate SEA and/or LEA partner(s). For applicants creating a new 
TEA, a DWA is only required with an LEA. For applicants expanding 
capacity for an early TEA or established TEA, a DWA with both an SEA 
and LEA is required.
    Proposed Program Requirements:
    Background: The Department proposes three program requirements. The 
first proposed program requirement, which would require grantees to 
hire a project director within 60 days of the grant award notification, 
would help ensure staffing capacity is promptly developed so that the 
project objectives can be timely met and addressed with fidelity. The 
second proposed program requirement, which would require grantees to 
have a finalized written agreement with partners, is intended to ensure 
that the parties joining the project are committed to fulfilling the 
purpose of the STEP program by either creating a new TEA or expanding 
an existing TEA. Both proposed program requirements would advance 
Tribal self-determination and help the TEA eventually administer an 
education program, or prepare to administer an education program, on 
behalf of an LEA or SEA.
    The second program requirement is to ensure the applicant and its 
SEA and

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LEA partners, as applicable, have a demonstrated commitment to either 
create a new, or expand an existing, TEA and have considered the 
allocation of roles and responsibilities necessary to carry out the 
project. In addition, this program requirement would ensure a 
commitment to deliverables that advance the project goals and timeline. 
This proposed program requirement would advance Tribal self-
determination and would help the TEA eventually administer an education 
program, or prepare to administer an education program, on behalf of an 
LEA or SEA. The draft agreement would allow applicants to be eligible 
for the program even though agreements may not be finalized in time for 
application submission.
    In any competition, the Department could use one or more of the 
proposed program requirements in addition to statutory program 
requirements under section 6132 of the ESEA. The proposed program 
requirements are:
    Proposed Program Requirement 1--Hire Project Director within 60 
Days.
    Grantees must hire a project director as soon as practicable, but 
no later than 60 days after the beginning of the performance period.
    Proposed Program Requirement 2--Final Written Agreement with 
Partners.
    Grantees must submit a final written agreement signed by all 
parties entering into the agreement within 120 days after receiving the 
grant award notification.
    Proposed Definitions:
    Background: The Department proposes to define the following terms 
for use in its STEP program competitions. Each of the defined terms is 
intended to provide clarity to applicants, grantees, and their partners 
with respect to the priorities and both the statutory and proposed 
application and program requirements, which we believe will help 
advance the ability of TEAs to exercise Tribal self-determination in 
public education.
    Specifically, the Department is proposing the definition of 
``directly administer,'' which is based on the definition in section 
8538 of the ESEA, to advance the ability of TEAs to exercise Tribal 
self-determination in public education. Section 6132(c)(2)(A) of the 
ESEA requires directly administering education programs including 
formula grant programs under the ESEA consistent with State law and 
written agreements between parties but does not define this term. To 
clarify responsibilities under this statutory program requirement, the 
Department proposes to define ``directly administer.'' Direct 
administration enables TEAs to become the fiscal agents and 
subsequently become financially responsible for the administration of 
project objectives, funds, and reporting.
    The Department derived its proposed definition of TEA from ESEA 
section 6132. However, we propose to expand the definition of TEA to 
include a TEA that includes an agency, department, or instrumentality 
of more than one Tribe if the Tribes are in close geographic proximity 
or have cultural connections to each other and agree through joint 
Tribal government resolution to have a combined TEA. The proposed 
change is responding to the request from Tribal leaders to award grants 
through a non-competitive process. This will allow Tribes with minimal 
capacity to advance common interests and promote Tribal self-
determination in public education.
    The Department proposes to further define ``established TEA'' and 
``early TEA'' to meaningfully differentiate between STEP projects that 
propose to create a new TEA versus expanding an early TEA or expanding 
an established TEA. The rationale behind the cutoffs were to 
quantifiably differentiate while making grants more accessible to TEAs 
in early stages of development. The definitions are intended to help 
applicants better identify the priority that applies to their proposed 
project.
    The Department proposes to define ``Tribal consultation'' to 
clarify the purpose of the consultation, the roles and responsibilities 
of all parties, and the need to acquire Tribal affirmation that the 
consultation has been conducted in accordance with the requirements. 
The written affirmation would ensure that the appropriate Tribal 
Nations were participating partners. The Department proposes to define 
``Affected LEA,'' which is based on the definition in section 8538 of 
the ESEA.
    In any competition, the Department could use one or more of these 
proposed definitions in addition to any statutory definitions. The 
proposed definitions are:
    Affected LEA means a local educational agency--
    (1) With an enrollment of American Indian or Alaska Native students 
that is not less than 50 percent of the total enrollment of the local 
educational agency; or
    (2) For any fiscal year following fiscal year 2017, that received a 
grant in the previous fiscal year under subpart 1 of part A of title VI 
that exceeded $40,000.
    Directly administer means conducting, as the fiscal agent, SEA 
functions or LEA functions for education programs, including ESEA 
formula grant programs, consistent with State law and the FWA.
    Draft written agreement (DWA) means an unsigned written agreement 
with an attached letter of support from each LEA or SEA partner 
indicating each has reviewed the project plan and will finalize the DWA 
into an FWA within 120 days of grant award notification. The DWA must 
include the following:
    (1) The roles and responsibilities for each partner.
    (2) An agreed-upon list of deliverables (Note: deliverables cannot 
be direct services to Indian students).
    (3) Identification of at least one point of contact for each 
partner.
    (4) A description of the resources each partner will contribute to 
the project (Note: resources do not need to be monetary or matching 
funds).
    Early TEA means a TEA that meets one or two of the criteria in the 
definition of established TEA.
    Established TEA means a TEA that meets three or more of the 
following criteria:
    (1) Has received a STEP grant in 2012 or subsequent years, or has 
an existing prior relationship with an SEA or LEA as evidenced by an 
FWA between the TEA and SEA or LEA.
    (2) Has an existing Tribal education code.
    (3) Has directly administered at least one education program within 
the past five years.
    (4) Has administered at least one Federal, State, local, or private 
grant within the past five years.
    (5) Has authorized teaching certifications.
    Final written agreement (FWA) means a signed written agreement 
between the TEA and the LEA or SEA; the TEA and one or more LEAs; or 
the TEA and both an SEA and one or more LEAs, that documents the 
commitment and timeline of the agreeing partners to implement the terms 
and conditions specified in the DWA.
    New TEA means a Tribal entity that does not meet the definition of 
``early TEA'' or ``established TEA.''
    Tribal consultation means that--
    (1) The SEA or LEA provides Tribes the opportunity for input;
    (2) The SEA or LEA consider and respond to the input from Tribal 
leaders or their officially designated proxies regarding an education 
program that affects the Tribal Nation or TEA; and
    (3) The partner Tribal Nation provides written confirmation that 
the consultation was meaningful and in good faith.
    Tribal educational agency (TEA) means the agency, department, or 
instrumentality of an Indian Tribe that

[[Page 79829]]

is primarily responsible for supporting Tribal students' elementary and 
secondary education. This term also includes an agency, department, or 
instrumentality of more than one Tribe if the Tribes are in close 
geographic proximity or have cultural connections to each other and 
agree through joint Tribal government resolution to have a combined 
TEA.
    Note: This document does not solicit applications. In any year in 
which we choose to use any of the final priorities, requirements, and 
definitions, we invite applications through a notice in the Federal 
Register.
    Final Priorities, Requirements, and Definitions: The Department 
will announce the final priorities, requirements, and definitions in a 
document in the Federal Register. We will determine the final 
priorities, requirements, and definitions after considering responses 
to the proposed priorities, requirements, and definitions and other 
information available to the Department. This document does not 
preclude us from proposing additional priorities, requirements, or 
definitions, subject to meeting applicable rulemaking requirements.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) determines 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.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    We have also reviewed this proposed regulatory action under 
Executive Order 13563, which supplements and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing the proposed priorities, requirements, and 
definitions only on a reasoned determination that their benefits would 
justify their costs. In choosing among alternative regulatory 
approaches, we selected those approaches that would maximize net 
benefits. Based on the analysis that follows, the Department believes 
that this regulatory action is consistent with the principles in 
Executive Order 13563.
    We also have determined that this 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 benefits of this 
regulatory action are the increased specificity of application 
requirements, program requirements, and definitions that will support 
effective program implementation that advances Tribal self-
determination between TEAs, SEAs, and LEAs. The potential costs are 
those resulting from statutory requirements and those we have 
determined as necessary for administering the Department's programs and 
activities. The proposed priorities, requirements, and definitions 
would impose minimal costs on entities that would receive assistance 
through the STEP program. Application submission and participation in 
the STEP program is voluntary. The Secretary believes that the costs 
imposed on applicants by the proposed priorities, requirements, and 
definitions would be limited to paperwork burden related to preparing 
an application for the STEP program. Because the costs of carrying out 
activities would be paid for with STEP program funds, the costs of 
implementation would not be a burden for any 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, and 
definitions, 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.

[[Page 79830]]

Paperwork Reduction Act

    The proposed priorities, requirements, and definitions contain 
information collection requirements that are approved by OMB under OMB 
control number 1894-0006; the proposed priorities, requirements, and 
definitions do not affect the currently approved data collection.

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 STEP program funds qualify as small entities 
under this definition, the proposed priorities, 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, and definitions 
would be limited to the costs related to providing the documentation 
outlined in the proposed priorities, definitions, and requirements when 
preparing an application and that those costs would not be significant. 
Participation in the STEP program is voluntary. We expect that in 
determining whether to apply for STEP funds, an eligible entity would 
evaluate the requirements of preparing an application and any 
associated costs and weigh them against the benefits likely to be 
achieved by receiving a STEP grant. An eligible entity will probably 
apply only if it determines that the likely benefits exceed the costs 
of preparing an application.
    We invite comments from small entities as to whether they believe 
the proposed priorities, requirements, and definitions would have a 
significant economic impact on them and, if so, we request evidence to 
support that belief.
    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.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or another accessible 
format.
    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 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.

James F. Lane,
Senior Advisor, Office of the Secretary, Delegated the Authority to 
Perform the Functions and Duties of the Assistant Secretary, Office of 
Elementary and Secondary Education.
[FR Doc. 2022-28222 Filed 12-27-22; 8:45 am]
BILLING CODE 4000-01-P