[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Rules and Regulations]
[Pages 27410-27413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09197]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2022-OESE-0151]


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

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

ACTION: Final priorities, requirements, and definitions.

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SUMMARY: The Department of Education (Department) announces final 
priorities, requirements, and definitions for 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 subsequent years. The Department is taking this action to support 
the development of partnerships among Tribal educational 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: These priorities, requirements, and definitions are effective 
June 1, 2023.

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: 
    Purpose of Program: The purposes of STEP are to: (1) promote Tribal 
self-determination in education; (2) improve the academic achievement 
of Indian children and youth; and (3) promote the coordination and 
collaboration of TEAs (as defined in this notice) with SEAs and LEAs to 
meet the unique education and culturally related academic needs of 
Indian students.
    Program Authority: Section 6132 of the ESEA (20 U.S.C. 7452).
    Public Comment: We published a notice of proposed priorities, 
requirements, and definitions (NPP) for this program in the Federal 
Register on December 28, 2022 (87 FR 79824). The NPP contained 
background information regarding the proposed priorities, requirements, 
and definitions. In response to our invitation to comment in the NPP, 
no comments on the proposed priorities, requirements, or definitions 
were received. As discussed in the Analysis of Comments and Changes 
section, we made changes to Priorities 1 and 3, as well as to two 
definitions. Generally, we do not address technical and other minor 
changes.
    Analysis of Comments and Changes:
    Priority 1--Improve Identification of Native Students for Title VI 
Indian Education Formula Grant Program.
    Comments: None.
    Discussion: We are revising the title of the priority to better 
align with the text of the priority, which is focused on improving 
identification of students for the Title VI Indian Education formula 
grant program.
    We are also revising the priority to better align with the 
statutory definition of ``Indian'' in ESEA section 6151(3), which, in 
relevant part, includes a student if they are a member of a Tribe or if 
they are a descendent in the first or second degree of a Tribal member. 
Although the proposed priority referred to Tribal affiliation 
generally, the ESEA definition of Indian includes students with a 
descendant relationship in the first or second degree for Title VI 
formula grant purposes.
    Changes: We have revised the title of the priority to ``Improve 
Identification of Native Students for Title VI Indian Education Formula 
Grant Program.'' We have also revised the priority to reflect that 
Tribal affiliation includes an affiliation through a descendent 
relationship.
    Priority 3--Enhance Tribal Consultation.
    Comments: None.
    Discussion: As explained in the NPP, we proposed Priority 3, in 
part, to advance Tribal self-determination in education by supporting 
TEAs to convene collaborative meetings with SEAs and LEAs to promote 
meaningful consultation. The majority of comments from Tribal leaders 
during Tribal Consultation on April 26, 2021, expressed 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. To that end, we 
referred to ``SEA goals'' and ``ESEA State Plans'' in the proposed 
priority but did not make specific reference to Tribal consultation 
with SEAs. Therefore, we are revising the priority to better address 
comments made during Tribal consultation and better reflect the goal of 
prioritizing projects that enhance consultation with SEAs and LEAs.
    Additionally, we recognize the importance of a Tribe or TEA 
determining who should be invited to enhance Tribal consultation. In 
referring to ``affected LEAs'' in the proposed priority, we limited the 
types of LEAs that could be considered to those that meet the 
definition of ``affected LEA'' in ESEA section 8538(c)(1). We believe 
that a Tribe or TEA could reasonably conclude that the participation of 
an LEA that does not meet the ESEA definition of ``affected LEA'' could 
promote meaningful consultation; therefore, we are expanding the types 
of LEAs included in this priority to provide maximum flexibility to the 
Tribes and TEAs.
    Changes: We have revised this priority to add the option for 
projects to enhance consultation with an SEA, at least one LEA, or 
both. We also have removed the reference to ``affected LEAs'' and the 
corresponding definition.

[[Page 27411]]

    Priority 5--Create a TEA.
    Comments: None.
    Discussion: To improve clarity, we are revising this priority to 
describe the types of applicants that are eligible, rather than the 
types of applicants that are not eligible, under the priority.
    Changes: We have rephrased this priority to provide that to meet 
this priority, applicants must be an Indian Tribe or Tribal 
organization approved by an Indian Tribe that is applying to create a 
TEA.
    Definitions.
    Established TEA.
    Comments: None.
    Discussion: Under the proposed definition of ``established TEA,'' 
to demonstrate that a TEA has an existing prior relationship with an 
SEA or LEA, the TEA must have entered into a final written agreement 
(FWA) with the SEA or LEA. Upon further consideration and to maximize 
flexibility for TEAs, we are revising the definition to permit TEAs to 
provide evidence of an existing prior relationship with an SEA or LEA 
other than an FWA. We understand that while some TEAs may have an FWA 
to coordinate with an LEA or SEA, particularly TEAs that have received 
STEP grants, it is possible that a TEA worked with an LEA or SEA 
without an FWA.
    Changes: We have revised the first criterion of the definition to 
remove the reference to a final written agreement.

Final Priorities

    Priority 1--Improve Identification of Native Students for Title VI 
Indian Education Formula Grant Program.
    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 an affiliation with a Tribal Nation 
through being a descendant in the first or second degree from a Tribal 
Nation member as described in ESEA section 6151(3).
    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/.
    Priority 2--Increase Coordination of Indian Education Programs.
    To meet this priority, an applicant must submit a high-quality plan 
that describes how it will strengthen its partnership with the SEA or 
LEA, to enhance coordination among all existing federally funded Indian 
education grants that impact the partner SEA or LEA to support the 
academic achievement of Indian students. A high-quality plan includes 
goals, milestones, and timelines for coordination, and must identify 
which existing federally funded programs the applicant is coordinating.
    Priority 3--Enhance Tribal Consultation.
    Projects to improve existing local Tribal consultation efforts with 
an SEA or LEA. To meet this priority, applicants must provide a high-
quality plan that describes how the project will increase the frequency 
of consultations with an SEA, at least one LEA, or both, and develop 
meaningful consultation procedures to help each LEA or SEA meet its 
goals as defined in their ESEA Consolidated State and Local Plans.
    Priority 4--New STEP Grantee.
    To meet this priority, an applicant must be an early TEA or 
applying to create a TEA and must not have previously received a STEP 
award from the Department.
    Priority 5--Create a TEA.
    To meet this priority, an applicant must be an Indian Tribe or 
Tribal organization approved by an Indian Tribe that is applying to 
create a TEA.
    Priority 6--Expand Capacity of Early TEAs.
    To meet this priority, an applicant must be an early TEA.
    Priority 7--Expand Capacity of Established TEAs.
    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 or competitive preference 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)).

Final Requirements

    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.
    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.
    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.

Final Definitions

    The Department establishes the following definitions for this 
program. We may apply one or more of these definitions in any year in 
which this program is in effect.
    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 SEA or LEA 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.

[[Page 27412]]

    (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 an 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 
provides evidence of an existing prior relationship with an SEA or LEA.
    (2) Has an existing Tribal education code.
    (3) Has directly administered at least one education program within 
the past 5 years.
    (4) Has administered at least one Federal, State, local, or private 
grant within the past 5 years.
    (5) Has authorized teaching certifications.
    Final written agreement (FWA) means a signed written agreement 
between the TEA and the SEA or LEA; 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 considers and responds 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 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 one or more of these priorities, requirements, 
or definitions, we will invite applications through a notice in the 
Federal Register.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
must determine whether this regulatory action is ``significant'' and, 
therefore, subject to the requirements of the Executive order and 
subject to review by the Office of Management and Budget (OMB). Section 
3(f) of Executive Order 12866 defines a ``significant regulatory 
action'' as an action likely to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final 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 final 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 these final 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 costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.
    We believe that the final priorities, requirements, and definitions 
will not impose significant costs on eligible TEAs that receive 
assistance through the STEP program. We also believe that the benefits 
of implementing the final priorities, requirements, and definitions 
outweigh any associated costs.
    We believe that the costs imposed on applicants would be limited to 
costs associated with developing applications, including developing 
partnerships with SEAs and LEAs, and that the benefits of creating a 
partnership that is likely to be sustained after the end of the project 
period would outweigh any costs incurred by applicants. The costs of 
carrying out activities proposed in STEP applications will be paid for 
with program funds. Thus, the costs of implementation will not be a 
burden for any eligible

[[Page 27413]]

applicants, including small entities. We also note that program 
participation is voluntary.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79, except that 
federally recognized Indian Tribes are not subject to those rules. 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 other 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 Adobe Portable Document Format 
(PDF). To use PDF, you must have Adobe Acrobat Reader, which is 
available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

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. 2023-09197 Filed 5-1-23; 8:45 am]
BILLING CODE 4000-01-P