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[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Rules and Regulations]
[Pages 11550-11556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-04492]

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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2014-OESE-0134; CFDA Number: 84.415A]

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

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

ACTION: Final priorities, requirements, definitions, and selection 
criteria.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
announces priorities, requirements, definitions, and selection criteria 
for the State Tribal Education Partnership (STEP) program. The 
Assistant Secretary may use one or more of these priorities, 
requirements, definitions, and selection criteria for competitions in 
fiscal year

[[Page 11551]]

(FY) 2015 and later years. We take this action to enable tribal 
educational agencies (TEAs) to administer formula grant programs under 
the Elementary and Secondary Education Act of 1965, as amended (ESEA), 
and to improve the partnership between TEAs and the State educational 
agencies (SEAs) and local educational agencies (LEAs) that educate 
students from the affected tribes.

DATES: Effective Date: These priorities, requirements, definitions, and 
selection criteria are effective April 3, 2015.

FOR FURTHER INFORMATION CONTACT: Shahla Ortega, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W223, Washington, DC 20202-
6450. Telephone: (202) 453-5602 or by email: shahla.ortega@ed.gov.
    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: 
    Purposes of Program: The purposes of the STEP program are to: (1) 
Promote increased collaboration between TEAs and the SEAs and LEAs that 
serve students from affected tribes; and (2) 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.

    Program Authority:  20 U.S.C. 7451(a)(4).

    We published a notice of proposed priorities, requirements, 
definitions, and selection criteria (NPP) for this program in the 
Federal Register on October 31, 2014 (79 FR 64716). That notice 
contained background information and our reasons for proposing the 
particular priorities, requirements, definitions, and selection 
criteria. This notice of final priorities, requirements, definitions, 
and selection criteria contains several significant changes from the 
NPP. We fully explain these changes in the Analysis of Comments and 
Changes section below.
    Public Comment: In response to our invitation in the NPP, five 
parties submitted comments on the proposed priorities, requirements, 
definitions, and selection criteria.
    We group major issues according to subject. Generally we do not 
address technical and other minor changes.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priorities, requirements, definitions, and 
selection criteria since publication of the NPP follows.

General

    Comment: One commenter stated that the STEP program was a good 
idea. Several commenters supported specific provisions in the NPP, 
including the requirement for projects to include at least one public 
school, the provision permitting the inclusion of off-reservation 
schools, the provision requiring the preliminary and final agreements 
to be signed by the TEA, SEA, and LEA, and the program-specific 
selection criteria.
    Discussion: We appreciate the support for the STEP program and for 
the specific provisions in the NPP.
    Changes: None.
    Comment: Three commenters suggested that the Department expand the 
STEP program to allow TEAs and tribes to: coordinate all education 
programs; provide support services and technical assistance to schools 
serving tribal children; provide tribal ``wrap around'' services in 
schools located on or near reservations and service areas; perform 
child find duties; and develop or update tribal education codes.
    Discussion: We agree that social services and other support 
services are very important, and that coordination and cooperation 
between the tribe and LEA regarding such services, including ``wrap 
around'' services, can lead to positive outcomes for students. We also 
agree that it would be appropriate for a STEP project to include 
cooperation between the TEA and the LEA or its schools in coordinating 
such services, assuming the STEP funds are not used for direct services 
or to supplant other funding sources. For example, a TEA that currently 
operates a preschool program could include provisions in the 
preliminary and final agreements regarding the transition of children 
to public school kindergarten, including required meetings between the 
relevant school district staff and tribal preschool staff, even if not 
directly tied to one of the ESEA formula grant programs. Therefore, we 
are revising the preliminary agreement requirements to include other 
activities as agreed by the parties. We are also revising the first 
purpose under the Purposes of Program section to broaden the scope of 
STEP.
    Many tribes operate schools funded by the Bureau of Indian 
Education (BIE), or have BIE-operated schools on their reservation. 
While it would not be consistent with the purposes of STEP for a 
grantee to use STEP funds for direct services at those schools, STEP 
funds could be used to coordinate services provided by BIE schools and 
public schools. In such event, the parties would include specific 
provisions for such coordination in the preliminary and final 
agreements.
    With respect to the suggestion to expand the STEP program for child 
find purposes, it would be duplicative and not an appropriate use of 
STEP funds to conduct child find for children with disabilities because 
there are other sources of funding, such as funds under Parts B and C 
of the Individuals with Disabilities Education Act (IDEA), that are 
specifically provided for that purpose. Under Parts B and C of the 
IDEA, the Department provides funds to tribal entities through the BIE, 
which may be used for child find purposes to identify infants, 
toddlers, and children with disabilities ages birth through five. 
Additionally, under the IDEA, the BIE is responsible for identifying, 
locating, and evaluating children with disabilities on reservations 
ages five through 21 enrolled in BIE-funded elementary and secondary 
schools. For infants and toddlers residing on reservations, the State 
lead agency is responsible under IDEA Part C for ensuring that children 
with disabilities ages birth through three residing in the State are 
identified, located, and evaluated. With respect to all other children 
ages three through 21 on reservations, the SEA is responsible for 
ensuring that all children with disabilities residing in the State are 
identified, located, and evaluated. However, increased collaboration 
between the TEA, SEA, and LEA, which is a likely outcome of a STEP 
project, can lead to improved communications regarding all services, 
including the early identification, location, and evaluation of 
children with disabilities.
    With regard to developing tribal education codes, we understand 
that such codes are important. Moreover, developing a tribal education 
code may be helpful in implementing a STEP project, and TEAs may wish 
to pursue this activity. However, we have chosen not to focus on 
updating and developing education codes because of the limited 
resources available for STEP and because we wanted to focus attention 
on the broader purpose of STEP grants: Fostering collaboration with 
SEAs and LEAs.
    We recognize that several of the commenters' suggested changes 
reflect provisions that are in section 7135 of the ESEA (``Grants to 
Tribes for Education Administrative Planning and Development''). The 
STEP program is funded under the general national activities authority 
in section 7131 of the ESEA, and is different from the program in 
section 7135. Thus, we are not required to include the activities that 
are in that program, and decline to do so for the reasons explained 
above.

[[Page 11552]]

    Changes: We have revised the requirements of the preliminary 
agreement by adding paragraph (a)(2) to require an explanation of how 
the parties will cooperate to administer any other educational programs 
or services upon which the parties have agreed. We have also revised 
the first purpose in the ``Purposes of Program'' section of this notice 
to correspond with the broader cooperative goal, by deleting the phrase 
``in the administration of certain ESEA formula grant programs.''
    Comment: One commenter suggested that tribes or TEAs should have 
the ability to apply directly for ESEA formula funding under the STEP 
program and assume the appropriate authority. Another commenter stated 
that when SEAs and LEAs manage ``pass-through'' dollars, those agencies 
retain money rather than spending all of the funds on students. The 
commenter requested that TEAs receive the funds and manage the 
programs.
    Discussion: We cannot change the underlying statutory requirements 
of the ESEA State-administered formula grant programs through this 
regulatory action, including the provisions requiring that we grant the 
funds to SEAs, which then distribute them to LEAs, or the provisions 
permitting a certain portion of funds to be used for SEA-level and LEA-
level administration of the programs. The STEP program does not provide 
funds for direct services. The purpose of the STEP program is to 
increase collaboration between TEAs, SEAs, and LEAs, and to increase 
the capacity of the TEA so that the TEA can assume LEA-type or SEA-type 
functions, within the existing statutory framework.
    Changes: None.

Priorities

    Comment: Although one commenter expressed support for the two 
priorities--one for established TEAs and one for TEAs with limited 
prior experience--two other commenters suggested that we modify the 
respective scopes of the two priorities by changing the definition of 
``established TEA.'' Because the effect of the priorities largely turns 
on the definition of ``established TEA,'' we discuss those comments 
here.
    These commenters stated that the proposed definition of 
``established TEA'' is too broad and would include many very small TEAs 
that would meet the proposed definition but would be at a competitive 
disadvantage compared to larger TEAs. One of these commenters 
recommended that we narrow the definition of ``established TEA'' by 
including only those TEAs that have a specified number of staff 
members, an agreement with the SEA or LEA, and an existing tribal 
education code. The other commenter requested that we limit established 
TEAs to those TEAs with sufficient staff capacity, as determined by the 
tribe, as well as an agreement with the SEA or LEA and an existing 
tribal education code. These two commenters also did not support the 
proposed criteria that an established TEA have administered an 
education program or grant program, suggesting that these factors do 
not demonstrate that a TEA is, in fact, established. Another commenter 
requested that we provide TEAs with limited prior experience more 
technical assistance in preparing and implementing the grant.
    Discussion: We created two priorities to minimize any competitive 
disadvantage that newly created TEAs and TEAs with relatively little 
experience operating education programs may have compared to current 
STEP grantees or TEAs that have existing relationships with their SEAs 
or LEAs. We agree that a modified definition of ``established TEA'' 
will better meet the objectives of the STEP program. Accordingly, we 
are revising the final definition of ``established TEA'' to specify 
some criteria that will be part of the definition of ``established 
TEA,'' as well as optional criteria that we may choose from and 
announce in the notice inviting applications. This flexibility will 
permit the Department to learn from each competition and apply its 
learning to subsequent competitions to better tailor the priorities to 
the program objectives.
    Based on experience with the current STEP grants, we agree that a 
prior relationship with an SEA or LEA is a strong predictor of success, 
and should always be one of the criteria for classification as an 
established TEA. However, we do not agree that the other criteria that 
the commenters suggested should always be used to define an 
``established TEA.'' First, we believe that we should reserve 
flexibility regarding the tribal education code criterion because there 
are so few tribes that have developed a tribal education code at this 
time. Second, we do not agree that size of staff should be a factor, 
due to the large variations in size among tribes and their memberships. 
Finally, we do not agree that we should add a tribally defined 
criterion of capacity, as that could allow TEAs to determine whether 
they are established, without regard to objective criteria applied to 
all TEAs.
    We believe that experience administering Federal grants and 
education programs, such as a tribal preschool program, provides a 
strong foundation for tribal capacity and should be retained as 
optional criteria. Thus, we are revising the definition of 
``established TEA'' accordingly.
    With respect to the comment requesting technical assistance, we 
plan to provide technical assistance for the STEP competition.
    Changes: We have revised the definition of ``established TEA'' to 
mean a TEA that has previously received a STEP grant, or a TEA that has 
a preexisting relationship with an SEA or LEA as evidenced by a written 
agreement between the TEA and SEA or LEA, and meets one or more of the 
following criteria (to be determined annually): Has an existing tribal 
education code, has administered at least one education program within 
the past five years, or has administered at least one Federal, State, 
local, or private grant within the past five years.
    Comment: None.
    Discussion: In further reviewing proposed priority 2, we have 
decided that it is unnecessary to state in the priority that a TEA with 
limited experience includes a TEA that has not received a previous STEP 
grant. This is already part of the definition of the term ``TEA with 
limited experience.''
    Changes: We have revised priority 2 by deleting the language ``a 
TEA that has not received a previous STEP grant.''

Requirements

    Comment: One commenter asked the Department to clarify the 
functions to be performed by the TEA. The commenter noted that, under 
the ESEA Formula Grant Programs section of the proposed requirements, 
STEP projects must include at least one SEA-administered ESEA formula 
grant program, while paragraph (b) of that section provides TEAs with 
flexibility to perform SEA- or LEA-type functions under the chosen ESEA 
program.
    Discussion: Generally, applicants can choose between SEA-type and 
LEA-type functions. We included the requirement that at least one SEA-
administered program (e.g., title I, title II, School Improvement 
Grants, etc.) be included in a project because we have expanded the 
scope of STEP to permit the incorporation of the ESEA title VII formula 
grants. Title VII formula grants are direct grants to LEAs; SEAs are 
not involved at all with these grants. If a project only included title 
VII grants, there would be no State role. Therefore, if a TEA and LEA 
choose to include a title VII program in the STEP project, the project 
must also include a State-administered ESEA formula grant

[[Page 11553]]

program. However, for that State-administered program, the TEA can 
still choose LEA-type or SEA-type functions.
    Changes: We have added a note following the definition of ``ESEA 
formula grant program'' stating that if applicants choose to include a 
title VII program in their STEP project, they must also include at 
least one State-administered program, but that applicants can still 
choose whether to perform SEA- or LEA-type functions for those State-
administered programs.
    Comment: Two commenters supported our inclusion of title VII in the 
types of formula grant programs that can be part of STEP projects. One 
commenter stated that both TEAs and LEAs are eligible for title VII 
formula grants, and the STEP grant would allow these two entities to 
make a local decision regarding the title VII grant administration. 
Another commenter suggested that the title VII grant program should be 
amended to include TEA administrative functions to ensure that tribal 
students are served properly.
    Discussion: We agree that including title VII grants in STEP 
projects provides greater flexibility for TEAs. However, tribes are not 
eligible for title VII formula grants in the same way as LEAs; under 
the statute, tribes are eligible to apply for the formula grants only 
if they apply in lieu of the LEA in accordance with the requirements in 
section 7112 of the ESEA. Tribes and their TEAs cannot compete with 
LEAs for a title VII grant. The STEP program does not change the title 
VII formula program or its statutory requirements in any way. We cannot 
amend the statute through this regulatory process. However, we agree 
that inclusion of the title VII formula grant in a STEP project would 
facilitate a local discussion regarding the appropriate use of the 
title VII funds to improve outcomes for American Indian and Alaska 
Native (AI/AN) youth, regardless of which entity--tribe, TEA, or LEA--
is the title VII grantee.
    Changes: None.
    Comment: One commenter supported the proposed preliminary agreement 
requirements related to data sharing. However, in this context, two 
commenters argued that it is difficult for TEAs to access education 
records, and that this hampers tribes' ability to provide support 
services and to make data-based decisions. These commenters suggested 
that the Department seek amendments to the Family Educational Rights 
and Privacy Act (FERPA) (Section 444 of the General Education 
Provisions Act (20 U.S.C. 1232g)) that would include TEAs among the 
educational agencies, authorities, and officials to whom protected 
student records and information may be released without the prior 
written consent of parents or students. In addition, one commenter 
suggested that we designate TEAs as authorized representatives of the 
Secretary of Education, and make technical assistance available to 
assist TEAs in the protection of education records. Another commenter 
requested a streamlined process for STEP grantees to access student 
records.
    Discussion: Although we appreciate the commenters' concerns, the 
provisions of FERPA are both statutory and regulatory and beyond the 
scope of this regulatory action. Further, we cannot designate an entity 
as an authorized representative of the Secretary of Education unless 
that entity performs an audit or evaluation function for which the 
Secretary is responsible (20 U.S.C. 1232g(b)(1)(C) and (b)(3) and 34 
CFR 99.35(a)(1)). The Department cannot use this FERPA exception to 
consent in order to permit entities to obtain access to education 
records to conduct evaluations that SEAs or LEAs are responsible for 
conducting.
    We understand from our work with the current STEP grantees that 
access to student data is important to tribes and their TEAs, as well 
as to the success of STEP projects. We also understand that many 
entities misunderstand FERPA requirements. We have provided technical 
assistance to the current STEP grantees, through webinars and 
individual assistance from our Family Policy Compliance Office, and 
will continue to do so for future STEP grantees. We believe that 
involvement by all parties--TEA, SEA, and LEA--in such technical 
assistance opportunities will lead to mutually satisfactory outcomes. 
We also agree that stronger provisions regarding data sharing in the 
STEP agreements between the TEA, SEA, and LEA would be helpful. 
Accordingly, we are revising the preliminary agreement requirements in 
paragraph (f)(1) to require the parties to acknowledge the importance 
of student data to the project's success. In addition, in paragraph 
(f)(1), we are specifying that, if the project design requires data 
sharing, the progress of the parties towards mutual data access may be 
a factor in determining whether a project is making substantial 
progress towards meeting its objectives, for purposes of continuation 
awards.
    In response to the commenters' concerns, we note that one option 
under which TEAs may access student education records without written 
consent is for the SEA or LEA to designate the TEA as an authorized 
representative for purposes of evaluating one or more ESEA formula 
grant programs that the SEA or LEA is responsible for evaluating. 
Because this designation requires the parties to enter a separate 
written agreement that complies with the FERPA regulations (see 34 CFR 
99.35(a)(3)), it can take time to finalize. Therefore, such a 
designation would not have to be completed as part of the preliminary 
STEP agreement required as part of the grant application, but must be 
included in or attached to the final agreement. In paragraph (f)(2) we 
are requiring that parties make their best efforts to participate in 
training regarding FERPA and to include in or attach to the final 
agreement the terms relating to data sharing that are consistent with 
FERPA.
    In paragraph (f) of the Preliminary Agreement requirement, we 
purposefully use the term data-sharing to emphasize that data sharing 
should be mutual, rather than one-directional, in order to account for 
all students. We note that many tribes operate BIE-funded schools, and 
AI/AN students transfer frequently between such schools and public 
schools. Accordingly, in any final agreement on terms relating to data 
sharing, a BIE school could agree to provide timely information to the 
TEA and the LEA concerning students who transfer to the public school 
or who drop out of the BIE school.
    Changes: We have revised the language in paragraph (f) of the 
Preliminary Agreement requirement to require the parties to: 
acknowledge that access to student data is important for TEA capacity 
building; and commit to making best efforts to participate in trainings 
and technical assistance and reach agreement on data sharing that is 
consistent with FERPA if it is required by the project design. This 
replaces the language that was in proposed paragraph (h) of the 
Preliminary Agreement requirement.
    Comment: One commenter raised concern about requiring TEAs to enter 
a partnership with local public schools and SEAs, because tribes have 
historically struggled with these agencies.
    Discussion: We acknowledge the historical struggle between tribes, 
SEAs, and LEAs. One of the major purposes of the STEP program is to 
increase collaboration between TEAs, SEAs, and LEAs, and, thus, the 
Department believes it is important to include these entities in the 
partnership. The preliminary and final agreements must therefore be 
signed by these parties.
    Changes: None.
    Comment: None.

[[Page 11554]]

    Discussion: Because STEP grants are subject to the Indian hiring 
preference in section 7(b) of the Indian Self-Determination and 
Education Assistance Act (Pub. L. 93-638) to the extent that they 
benefit primarily members of federally recognized tribes, we are adding 
a reference to this provision under the Requirements section.
    Changes: We have added the statutory hiring preference 
requirements, entitled ISDEAA Hiring Preference, under the Requirements 
section of this notice.

Definitions

    Comment: Several commenters suggested changes to the definition of 
``established TEA.'' Those comments and corresponding changes are 
discussed in the Priorities part of the Analysis of Comments and 
Changes section of this document.

Final Priorities

Final Priority 1--Established TEAs
    To meet this priority, a TEA must be an established TEA.
Final Priority 2--TEAs with Limited Prior Experience
    To meet this priority, a TEA with limited prior experience is, for 
any STEP competition, a TEA that does not meet the definition of 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)).

Final Requirements

    The Assistant Secretary for Elementary and Secondary Education 
establishes 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.
Eligible Applicant
    (a) A TEA that is from an eligible Indian tribe and is authorized 
by its tribe to administer this program; or
    (b) A consortium of such TEAs.
Schools and ESEA Formula Grant Programs Included in Project
    (a) Schools. (1) Projects must include at least two eligible 
schools, at least one of which must be a public school.
    (2) All schools included in the project must receive services or 
funds for the specific ESEA formula grant program(s) selected by the 
applicant.
    (3) For projects that include one or more tribally controlled 
schools--
    (i) The applicant TEA must include in its application evidence that 
it submitted a copy of the application to BIE; and
    (ii) If the proposed project includes SEA-type functions with 
regard to the tribally controlled school, the TEA may be required by 
BIE to enter into an agreement with BIE, to be submitted to the 
Department at the same time as the final agreement.
    (b) ESEA Formula Grant Programs. Projects must include at least one 
ESEA formula grant program that is State-administered.
    Preliminary Agreement: An applicant must submit with its 
application for funding a signed preliminary agreement among the TEA, 
SEA, and LEA. Letters of support from an SEA or LEA will not meet this 
requirement and will not be accepted as a substitute.
    The preliminary agreement must include:
    (a) An explanation of how the parties will work collaboratively to:
    (1) Administer selected ESEA formula grant programs in eligible 
schools; and
    (2) Cooperate on administering other educational programs or 
services as agreed to by the parties.
    (b) The primary ESEA formula grant program(s) for which the TEA 
will assume SEA-type or LEA-type administrative functions;
    (c) A description of the primary SEA-type or LEA-type 
administrative functions that the TEA will assume;
    (d) The training and other activities that the SEA or LEA, as 
appropriate, will provide for the TEA to gain the knowledge and skills 
needed to administer ESEA formula programs;
    (e) The assistance that the TEA will provide to the SEA or LEA, as 
appropriate, to facilitate the project, such as cultural competence 
training;
    (f) A statement concerning student data that--
    (1) Acknowledges that access by the TEA to data on students who are 
tribal members is important to building the capacity of the TEA, and, 
depending on the project design, may be one of the factors the 
Secretary considers in determining whether a grantee has made 
substantial progress in achieving the goals and objectives of the 
project for the purpose of making continuation awards; and
    (2) Commits the parties to making their best efforts to:
    (i) Participate in training and technical assistance, provided by 
or through the Department, on the requirements of section 444 of the 
General Education Provisions Act (commonly referred to as the Family 
Educational Rights and Privacy Act, or FERPA) and on the possible ways 
in which the TEA could be provided access to tribal student data 
consistent with FERPA; and
    (ii) Reach agreement on and include as part of the Final Agreement 
to be submitted during year 1 of the grant, a provision on data sharing 
that is consistent with FERPA, if data sharing is required by the 
project design;
    (g) The names of at least one LEA and two or more eligible schools, 
at least one of which must be a public school, that are expected to 
participate in the project;
    (h) An explanation of how the STEP funds will be used to build on 
existing activities or add new activities rather than replace tribal or 
other funds; and
    (i) Signatures of the authorized representatives of the TEA, SEA, 
participating LEA(s), and any BIE-funded tribally controlled school 
that is included in the project.
    Final Agreement: Each grantee must submit to the Department a final 
agreement by the date, in year 1 of the grant, to be established by the 
Department in the notice inviting applications. The final agreement 
must contain:
    (a) All of the elements from the preliminary agreement, in final 
form;
    (b) A timetable for accomplishing each of the objectives and 
activities that the parties will undertake;
    (c) Goals of the project and measureable objectives towards 
reaching the goals; and
    (d) The actions that the parties will take to sustain the 
relationships and activities established in the agreement after the 
project ends.

[[Page 11555]]

ISDEAA Hiring Preference
    (a) Awards that are primarily for the benefit of Indians are 
subject to the provisions of section 7(b) of the Indian Self-
Determination and Education Assistance Act (P.L. 93-638). That section 
requires that, to the greatest extent feasible, a grantee--
    (1) Give to Indians preferences and opportunities for training and 
employment in connection with the administration of the grant; and
    (2) Give to Indian organizations and to Indian-owned economic 
enterprises, as defined in section 3 of the Indian Financing Act of 
1974 (25 U.S.C. 1452(e)), preference in the award of contracts in 
connection with the administration of the grant.
    (b) For purposes of this section, an Indian is a member of any 
federally recognized Indian tribe.
Final Definitions
    The Assistant Secretary for Elementary and Secondary Education 
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.
    Cultural competency means the use of culturally responsive 
education that takes into account a student's own cultural experiences, 
creates connections between home and school experiences, and uses the 
cultural knowledge, prior experiences, and learning styles of diverse 
students to make learning more appropriate and effective.
    Eligible Indian tribe means a federally recognized or a State-
recognized tribe.
    Eligible school means a school that is included in the applicant's 
preliminary and final agreements, and that is:
    (a) A public school, including a public charter school, or
    (b) A BIE-funded tribally controlled school.
    Established TEA means a TEA that:
    (a) Previously received a STEP grant, or
    (b) Has an existing prior relationship with an SEA or LEA as 
evidenced by a prior written agreement between the TEA and SEA or LEA, 
and meets one or more of the following criteria, as specified by the 
Secretary in a notice inviting applications published in the Federal 
Register:
    (i) Has an existing tribal education code;
    (ii) Has administered at least one education program (for example, 
a tribally operated preschool or afterschool program) within the past 
five years; or
    (iii) Has administered at least one Federal, State, local, or 
private grant within the past five years.

    Note: For each competition, the Secretary will publish in the 
Federal Register the minimum number of criteria from this list (such 
as two out of three), or the specific criteria from this list that 
an established TEA must meet.

    ESEA formula grant program means one of the following programs 
authorized under the Elementary and Secondary Education Act of 1965, as 
amended (ESEA), for which SEAs or LEAs receive formula funding:
    (a) Improving Academic Achievement of the Disadvantaged (title I, 
part A);
    (b) School Improvement Grants (section 1003(g));
    (c) Migrant Education (title I, part C);
    (d) Neglected and Delinquent State Grants (title I, part D);
    (e) Improving Teacher Quality State Grants (title II, part A);
    (f) English Learner Education State Grants (title III, part A);
    (g) 21st Century Community Learning Centers (title IV, part B); and
    (h) Indian Education Formula Grants (title VII, part A).

    Note: State-administered ESEA formula grant programs are the 
programs identified in paragraphs (a)-(g) of the definition of ESEA 
formula grant program. If an applicant chooses the Indian Education 
Formula Grants program (title VII, part A), which makes direct 
grants to LEAs, it must also choose at least one State-administered 
program listed in (a)-(g), as required by paragraph (b) of the 
Schools and ESEA Formula Grant Programs Included in Project 
requirement. Applicants can still choose SEA- or LEA-type functions 
for the State-administered ESEA formula grant.

    LEA-type function means the type of activity that LEAs typically 
conduct, such as direct provision of educational services to students, 
grant implementation, school district curriculum development, staff 
professional development pursuant to State guidelines, and data 
submissions.
    SEA-type function means the type of activity that SEAs typically 
conduct, such as overall education policy development, supervision and 
monitoring of school districts, provision of technical assistance to 
districts, statewide curriculum development, collecting and analyzing 
performance data, and evaluating programs.
    Tribal educational agency (TEA) means the agency, department, or 
instrumentality of an eligible Indian tribe that is primarily 
responsible for supporting tribal students' elementary and secondary 
education, which may include early learning.
Final Selection Criteria
    The Assistant Secretary for Elementary and Secondary Education 
establishes the following selection criteria for evaluating an 
application under this program. In any year in which this program is in 
effect, we may apply one or more of these criteria or sub-criteria, any 
of the selection criteria in 34 CFR 75.210, or any combination of 
these. In the notice inviting applications or the application package 
or both, we will announce the maximum possible points assigned to each 
criterion.
    (a) Need for project. The Assistant Secretary considers the extent 
to which the goals and objectives in the preliminary agreement, 
including the TEA capacity-building activities, address identified 
educational needs of the Indian students to be served.
    (b) Quality of the project design. The Assistant Secretary 
considers one or more of the following factors:
    (1) The extent to which the proposed project would recognize and 
support tribal sovereignty.
    (2) The extent to which the preliminary agreement defines goals, 
objectives, and outcomes of the proposed project that are likely to be 
achieved by the end of the project period.
    (3) The extent to which the proposed project would build 
relationships and better communication among the TEA, SEA, and LEA, as 
well as families and communities, to the benefit of Indian students in 
the selected schools, including by enhancing the cultural competency of 
SEA and LEA staff.
    (4) The extent to which the proposed project would enhance the 
capacity of the TEA to administer ESEA formula grants during the grant 
period and beyond.
    (c) Adequacy of resources. The Assistant Secretary considers the 
extent to which:
    (1) The TEA has established, prior to developing the preliminary 
agreement, a relationship with either the SEA or an LEA that will 
enhance the likelihood of the project's success; and
    (2) The use of STEP grant funds supports the capacity-building 
activities that are needed to administer ESEA formula grants.
    (d) Quality of project personnel. The Assistant Secretary considers 
the extent to which the proposed project director has experience in 
education and in administering Federal grants.
    This notice does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

[[Page 11556]]

    Note: This notice does not solicit applications. In any year in 
which we choose to use one or more of these priorities, 
requirements, definitions, or selection criteria, we will invite 
applications through a notice in the Federal Register.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary 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, definitions, 
and selection criteria only on a reasoned determination that their 
benefits would justify their costs. In choosing among alternative 
regulatory approaches, we selected those approaches that would maximize 
net benefits. Based on the analysis that follows, the Department 
believes that 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, definitions, 
and selection criteria would 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, 
definitions, and selection criteria 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 would be paid for 
with program funds. Thus, the costs of implementation would not be a 
burden for any eligible 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: 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. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available 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: February 26, 2015.
Deborah S. Delisle,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2015-04492 Filed 3-3-15; 8:45 am]
BILLING CODE 4000-01-P
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