[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Proposed Rules]
[Pages 66655-66658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28130]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2018-OESE-0122]


Proposed Definitions and Requirements--Alaska Native Education 
Program

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

ACTION: Proposed definitions and requirements.

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SUMMARY: The Assistant Secretary for the Office of Elementary and 
Secondary Education proposes definitions and requirements under the 
Alaska Native Education (ANE) program, Catalog of Federal Domestic 
Assistance (CFDA) number 84.356A. These definitions and requirements 
would clarify the eligibility requirements for the program, based upon 
changes that the Every Student Succeeds Act (ESSA) made to the 
Elementary and Secondary Education Act of 1965 (ESEA).

DATES: We must receive your comments on or before January 28, 2019.

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

[[Page 66656]]

include the Docket ID at the top of your comments.
    <bullet> 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.''
    <bullet> 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, address 
them to Almita Reed, U.S. Department of Education, 400 Maryland Avenue 
SW, Room 3E222, Washington, DC 20202-6450.
    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: Almita Reed, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3E222, Washington, DC 20202-
6450. Telephone: (202) 260-1979. Email: <a href="/cdn-cgi/l/email-protection#b0d1dcddd9c4d19ec2d5d5d4f0d5d49ed7dfc6"><span class="__cf_email__" data-cfemail="93f2fffefae7f2bde1f6f6f7d3f6f7bdf4fce5">[email protected]</span></a>.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
this document. To ensure that your comments have maximum effect in 
developing the notice of final definitions and requirements, we urge 
you to identify clearly the specific issues that each comment 
addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 13771 and their 
overall requirement of reducing regulatory burden that might result 
from these proposed definitions and requirements. 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 all public 
comments about this document by accessing Regulations.gov. You may also 
inspect the comments in person in room 3E222, 400 Maryland Avenue SW, 
Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern 
Time, Monday through Friday of each week except Federal holidays.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for 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 ANE program is to support 
innovative projects that recognize and address the unique education 
needs of Alaska Natives. These projects must include the activities 
authorized under section 6304(a)(2) of the ESEA, as amended by the 
ESSA, and may include one or more of the activities authorized under 
section 6304(a)(3) of the ESEA.
    Program Authority: Title VI, part C of the ESEA (20 U.S.C. 7541-
7546).

Proposed Definitions

Background

    The ESEA, reauthorized in December 2015,\1\ established new 
requirements governing eligibility for the ANE program. In Fiscal Year 
(FY) 2017, the Department conducted the first ANE program grant 
competition under the new ESEA requirements. Through this document the 
Department is proposing definitions and requirements that will apply to 
future competitions.
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    \1\ Throughout this document, unless otherwise indicated, 
citations to the ESEA refer to the ESEA, as amended by the ESSA.
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    Prior to the FY 2017 competition, and in June 2018, to gather 
feedback about how the statutory amendments should be implemented, the 
Department conducted a Tribal consultation and several listening 
sessions. These events informed the provisions that governed the FY 
2017 competition, announced through a notice inviting applications in 
the Federal Register on May 15, 2017 (82 FR 22323), and the proposed 
definitions and requirements in this document.
    Under section 6304(a)(1) of the ESEA, three types of entities are 
eligible for grants under the ANE program:
    (a) Alaska Native organizations (ANOs) with experience operating 
programs that fulfill the purposes of the ANE program;
    (b) ANOs that do not have experience operating programs that 
fulfill the purposes of the ANE program, but are in partnership with--
    (i) A State educational agency (SEA) or local educational agency 
(LEA); or
    (ii) An ANO that operates a program that fulfills the purposes of 
the ANE program; and
    (c) An entity located in Alaska, and predominately governed by 
Alaska Natives, that does not meet the definition of an ANO but--
    (i) Has experience operating programs that fulfill the purposes of 
the ANE program; and
    (ii) Is granted an official charter or sanction from at least one 
Alaska Native tribe or ANO to carry out programs that meet the purposes 
of the ANE program.
    For the FY 2017 competition, we waived notice-and-comment 
rulemaking, as permitted under section 437(d)(1) of the General 
Education Provisions Act, to define several of these statutory terms 
related to eligible entities.
    In this document, the Assistant Secretary proposes three 
definitions for this program to clarify these eligibility requirements. 
These proposed definitions are substantially similar to those used for 
the FY 2017 competition, but we have made minor adjustments to improve 
their clarity. We may apply one or more of these definitions in any 
year in which this program is in effect.

Proposed Definitions

    Experience operating programs that fulfill the purposes of the ANE 
program means that the entity has received and satisfactorily 
administered, in compliance with applicable terms and conditions, a 
grant under the ANE program or another Department program within the 
past four years that focused on meeting the unique education needs of 
Alaska Native children and families in Alaska.
    Official charter or sanction means a signed letter or written 
agreement from an Alaska Native Tribe or ANO that is dated within 120 
days of the date of the submission of the application and expressly (1) 
authorizes the applicant to conduct activities authorized under the ANE 
program and (2) describes the nature of those activities.
    Predominately governed by Alaska Natives means that at least 80 
percent of the individuals on the entity's governing board (i.e., the 
board elected or appointed to direct the policies of the organization) 
are Alaska Natives.

Proposed Requirements

    Background: The proposed requirements would clarify the information 
needed for entities to establish whether they meet the eligibility 
requirements, including the proposed definitions, for the program.

[[Page 66657]]

These application requirements are substantially similar to those used 
in the FY 2017 ANE competition, but we have made minor adjustments to 
improve their clarity.
    The Assistant Secretary proposes the following requirements for 
this program. We may apply one or more of these requirements in any 
year in which this program is in effect.
    Proposed Requirement 1--Group Application Requirement.
    (a) An ANO that applies for a grant in partnership with an SEA or 
LEA must serve as the fiscal agent for the project.
    (b) Group applications under the ANE program must include a 
partnership agreement that includes a Memorandum of Understanding or a 
Memorandum of Agreement (MOU/MOA) between the members of the 
partnership identified and discussed in the grant application. Each 
MOU/MOA must--
    (1) Be signed by all partners, and dated within 120 days of the 
date of the submission of the application;
    (2) Clearly outline the work to be completed by each partner that 
will participate in the grant in order to accomplish the goals and 
objectives of the project; and
    (3) Demonstrate an alignment between the activities, roles, and 
responsibilities described in the grant application for each of the 
partners in the partnership agreement.
    Proposed Requirement 2--Applicants Establishing Eligibility through 
a Charter or Sanction from an Alaska Native Tribe or ANO.
    For an entity that does not meet the eligibility requirements for 
an ANO, established in sections 6304(a)(1) and 6306(2) of the ESEA and 
the proposed definitions in this notice, and that seeks to establish 
eligibility through a charter or sanction provided by an Alaska Native 
Tribe or ANO as required under section 6304(a)(1)(C)(ii) of the ESEA, 
the following documentation is required:
    (1) Written documentation demonstrating that the entity is 
physically located in the State of Alaska.
    (2) Written documentation demonstrating that the entity has 
experience operating programs that fulfill the purposes of the ANE 
program.
    (3) Written documentation demonstrating that the entity is 
predominately governed by Alaska Natives, including the total number, 
names, and Tribal affiliations of members of the governing board.
    (4) A copy of the official charter or sanction provided to the 
entity by an Alaska Native Tribe or ANO.

Final Definitions and Requirements

    We will announce the final definitions and requirements in a 
document published in the Federal Register. We will determine the final 
definitions and requirements after considering comments on the proposed 
definitions and requirements and other information available to the 
Department. This document does not preclude us from proposing 
additional definitions or requirements, or proposing priorities or 
selection criteria for the ANE program, subject to meeting applicable 
rulemaking requirements.
    Note: This document does not solicit applications. In any year in 
which we choose to use one or more of these definitions and 
requirements, we invite applications through a notice in the Federal 
Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive Order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment, or otherwise promulgates, 
that 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 2019, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because the proposed 
regulatory action is not significant, the requirements of Executive 
Order 13771 do not apply.
    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 these proposed definitions and requirements 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.

[[Page 66658]]

    We also have determined that this proposed regulatory action would 
not unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.
    In accordance with these 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.

Discussion of Costs and Benefits

    We have determined that these proposed definitions and requirements 
would impose minimal costs on eligible applicants. Program 
participation is voluntary, and the costs imposed on applicants by 
these definitions and requirements would be limited to paperwork burden 
related to preparing an application. The potential benefits of 
implementing the programs would outweigh any costs incurred by 
applicants, and the costs of actually 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.

Paperwork Reduction Act of 1995

    These proposed definitions and requirements do not contain any 
information collection requirements.

Regulatory Flexibility Act

    The Secretary certifies that this proposed regulatory action would 
not have a significant economic impact on a substantial number of small 
entities. The U.S. Small Business Administration Size Standards define 
``small entities'' as for-profit or nonprofit institutions with total 
annual revenue below $7,000,000 or, if they are institutions controlled 
by small governmental jurisdictions (that are comprised of cities, 
counties, towns, townships, villages, school districts, or special 
districts), with a population of less than 50,000.
    Although some of the ANOs, LEAs, and other entities that receive 
ANE program funds qualify as small entities under this definition, the 
proposed definitions and requirements would not have a significant 
economic impact on these small entities. The Department believes that 
the costs imposed on an applicant by the proposed definitions and 
requirements would be limited to the costs related to providing the 
documentation outlined in the proposed definitions and requirements 
when preparing an application and that those costs would not be 
significant. Participation in the ANE program is voluntary. We invite 
comments from small entities as to whether they believe the proposed 
definitions and requirements would have a significant economic impact 
on them and, if so, we request evidence to support that belief.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.
    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 program contact 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 via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other 
documents of this Department published in the Federal Register, in text 
or Adobe Portable Document Format (PDF). To use PDF you must have Adobe 
Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: December 20, 2018.
Frank Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2018-28130 Filed 12-26-18; 8:45 am]
 BILLING CODE 4000-01-P


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