Standards, Assessments, and Accountability System, 17009-17030 [2020-06148]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 85, Number 59 (Thursday, March 26, 2020)]
[Rules and Regulations]
[Pages 17009-17030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06148]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 30

[190D0102DR/DS5A300000/DR.5A311.IA000119]
RIN 1076-AF13


Standards, Assessments, and Accountability System

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Education (BIE) is finalizing a rule 
developed using a negotiated rulemaking process, as required by the 
Elementary and Secondary Education Act of 1965 (ESEA or the Act), as 
amended by 2015 Every Student Succeeds Act (ESSA), for implementation 
of the Secretary of the Interior's (Secretary) responsibility to 
establish requirements for standards, assessments, and an 
accountability system for BIE-funded schools.

DATES: This rule is effective on April 27, 2020.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background
II. Overview of the Final Rule
III. Public Comments on the Proposed Rule and Responses to Comments

[[Page 17010]]

    A. Comments in General
    B. Comments That are Directly Related to the Proposed Rule
IV. Section-by-Section Analysis
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563
    B. Reducing Regulation and Controlling Regulatory Costs (E.O. 
13771)
    C. Regulatory Flexibility Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act
    F. Takings (E.O. 12630)
    G. Federalism (E.O. 13132)
    H. Civil Justice Reform (E.O. 12988)
    I. Consultation With Indian Tribes (E.O. 13175)
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Effects on the Energy Supply (E.O. 13211)

I. Background

    On June 10, 2019, BIE published a proposed rule to govern how the 
Secretary will establish requirements for standards, assessments, and 
an accountability system for BIE-funded schools consistent with ESEA 
section 1111 on a national, regional, or tribal basis, as appropriate, 
taking into account the unique circumstances and needs of such schools 
and the students served by such schools. See 84 FR 26785. During the 
60-day public comment period, BIE held six tribal consultation 
sessions: July 11, 2019, in Albuquerque, New Mexico; July 16, 2019, in 
Window Rock, Arizona; July 18, 2019, in Kyle, South Dakota; July 23, 
2019, in Bloomington, Minnesota; July 26, 2019, via teleconference; and 
July 30, 2019, in Olympia, Washington. The public comment period on the 
proposed rule ended on August 9, 2019.

II. Overview of the Final Rule

    This Standards, Assessments, and Accountability System final rule 
replaces the 25 CFR part 30 regulations concerning Adequate Yearly 
Progress (AYP) published in the Federal Register on April 28, 2005, 
effective May 31, 2005 pursuant to the requirements of ESEA, as amended 
by the No Child Left Behind Act, Public Law 107-110. See 70 FR 22178. 
This final rule is being published pursuant to the requirements of 
ESEA, as amended by ESSA, Public Law 114-95. It is the intent of this 
final rule to provide simplicity, certainty, clarity, and consistency 
for the 174 BIE-funded schools, the students served by those schools, 
the parents of those students, school administrators, Tribes, and the 
Indian communities served by BIE-funded schools.
    Among other things, in this final rule, the BIE:
     Added a definition of ``School Year'' and added language 
to Sec.  30.112 to clarify a general effective date for approved 
alternative requirements that will allow sufficient time for planning 
and implementation;
     Replaced the term ``Standards, Assessments, and 
Accountability System Plan (SAAP)'' with the term ``Agency Plan (AP)'' 
throughout the rule to avoid potentially negative connotations that may 
be associated with the acronym ``SAAP,'' as well as to reflect that the 
agency plan is intended to be a living document that will not only 
encompass the Bureau's standards, assessments, and an accountability 
system, but will also cover a broader range of topics including the 
Bureau's guidance on Native American language content assessments, 
alternative requirements, and school comprehensive support and 
improvement activities;
     Added language to Sec.  30.100 similar to that previously 
located at Sec.  30.103(e) of the proposed rule describing the ability 
of tribal governing bodies or school boards to create their own Native 
American language academic standards and Native American language 
assessments that specifically references the sovereign right to use 
Native American languages as a medium of instruction;
     Added language at the end of Sec.  30.103(a), similar to 
language recommended by the BIE's Standards, Assessments, and 
Accountability System Negotiated Rulemaking Committee (Committee) 
previously located at Sec.  30.111(b)(7) of the proposed rule, 
indicating that the Secretary must periodically review and revise the 
requirements for the accountability system established pursuant to this 
part;
     Amended and clarified language in Sec.  30.103(c) 
regarding consultation with stakeholders to reference the Department of 
the Interior's (Department) Consultation Policy;
     Revised the language in Sec.  30.104(a) and (b) for 
consistency with ESEA section 1111(b)(1);
     Revised the language in Sec.  30.104(c) to clarify this 
paragraph applies to content standards versus achievement standards;
     Added a new paragraph (h) to Sec.  30.105 similar to 34 
CFR 200.6, (j)-(k) regarding assessments for students in Native 
American language schools or programs throughout the BIE-funded school 
system; and
     Added language to Sec.  30.111 and Sec. Sec.  30.120 
through 30.124 for consistency with ESEA section 1111(c)-(d) and to 
clarify requirements regarding school comprehensive support and 
improvement activities as well as targeted support and improvement 
activities.

III. Public Comments on the Proposed Rule and Responses to Comments

    The BIE sought public comment on the proposed rule, as well as 
tribal input through a series of tribal consultation sessions. Overall, 
BIE heard from a wide variety of stakeholders including tribal leaders, 
school board members, educators, national organizations, and the 
public. BIE also received over 40 written comment submissions. All 
public comments received in response to the proposed rule are available 
for public inspection. To view all comments, search by Docket Number 
``BIA-2016-0005'' in https://www.regulations.gov. The BIE has decided 
to proceed to the final rule stage after careful consideration of all 
comments. The BIE's responses to such comments are detailed below.

A. Comments in General

    The BIE received a wide range of comments expressing concerns about 
the condition of facilities, lack of communication, the need for up-to-
date computer equipment, and the various challenges that affect the 
everyday lives of students served by the BIE-funded schools. BIE 
addresses these general comments below.
    Comment: Numerous commenters expressed concern that there had been 
a lack of communication from the BIE about the negotiated rulemaking 
process. Commenters also expressed a concern that the Tribes and 
schools were not notified in a timely manner about the tribal 
consultation sessions and that they had been scheduled during the 
summer months when schools are not in session. Commenters also 
expressed concern that insufficient time had been provided by the 
Department to review and comment on the proposed rule, nor was 
information provided on the details of the BIE's plans for implementing 
the BIE's standards, assessments and accountability plan, that will 
undergo a separate tribal consultation process.
    Response: Establishment of this negotiated rulemaking committee 
occurred over the course of several years and the Bureau alerted the 
public of its establishment through several notices in the Federal 
Register, including those requesting nominations to the committee and 
providing notice of meetings. See, 82 FR 43199 (September 14, 2017); 82 
FR 5473 (January 18, 2017); 83 FR 16806 (April 17, 2018); 83 FR 37822 
(August 2, 2018); and 84 FR 3135 (February 11, 2019). The Bureau

[[Page 17011]]

hosted five in-person and one teleconference sessions at which 
stakeholders were welcomed to join. The Bureau provided advance notice 
of the all sessions through a listing in the proposed rule and in a 
letter to tribal leaders dated June 10, 2019. See 84 FR 26785, 26792 
(June 10, 2019). Specifically, per the Department of the Interior's 
tribal consultation policy, the Bureau provided 30-days advanced 
notification to tribal leaders through a Dear tribal leader letter of 
the upcoming consultation sessions. Other stakeholders were welcomed to 
join the sessions in-person, with an option of attending the one 
webinar session. The proposed rule also followed the requirements of 
the Administrative Procedures Act by publishing the proposed rule in 
the Federal Register. See 84 FR 26785. As published, the proposed rule 
provided for a 60-day comment period, with a deadline for submission of 
comments through one of several means by the close of business on 
August 9, 2019. The tribal consultation sessions began 30 days into 
this 60-day comment period. The proposed rule was posted on both the 
www.bia.gov and www.bie.edu web pages. The BIE sent an all employee 
email on July 10, 2019, notifying staff of the upcoming tribal 
consultation sessions. Finally, the BIE will hold further consultations 
regarding the BIE's Agency Plan, which will provide stakeholders 
further opportunity to be involved in shaping the implementation of the 
BIE's requirements for standards, assessments, and accountability 
system.
    Comment: In-person and electronic comments stated concern with the 
amount of time it took to establish a Negotiated Rulemaking Committee.
    Response: As indicated in the Federal Register dated September 14, 
2017, the BIE re-initiated the process to form the negotiated 
rulemaking committee to allow the then-incoming Administration to 
participate fully in the process. See 82 FR 43199.
    Comment: Commenters expressed their concern that the Committee was 
not afforded adequate time to adequately address the full scope of the 
work with which they were tasked to complete within four meetings. In 
addition, some expressed great concern that the Committee was unable to 
reach consensus on the entire assessments section due to insufficient 
time.
    Response: The Committee met four times over the period of September 
2018 to March 2019. The Committee was originally scheduled to have 
three in-person meetings over the time period of September 2018 through 
December 2018. A fourth meeting was added at the request of the 
Committee held in March 2019. In addition to the four public meetings, 
Committee members met numerous times via teleconference as 
subcommittees focused on different aspects of the work of the Committee 
(e.g., standards, assessments, accountability system). These 
subcommittees then reported on their work to the full Committee. During 
both subcommittee and formal Committee meetings, Committee members 
heard from experts and developed an understanding of the more technical 
aspects of standards, assessments, and accountability requirements 
outlined in ESEA section 1111 (section 1111). The Committee submitted a 
Standards, Assessment, and Accountability System Negotiated Rulemaking 
Committee Final Consensus Report, dated April 1, 2019, to the BIE 
Director providing the recommendations of the Committee. While the 
Committee did not come to consensus on language regarding assessments, 
they did identify specific provisions from the regulations of the 
Department of Education that they considered important to consider 
including in the rule, and there was general agreement on including 
language from 34 CFR 200.6(g), (j)-(k). The BIE included some of the 
provisions identified for consideration by the Committee in its final 
rule, taking into consideration the unique circumstances and needs of 
BIE-funded schools and the students served at such schools. The BIE has 
also incorporated language similar to 34 CFR 200.6(g), (j)-(k), also 
taking into consideration the unique circumstances and needs of BIE-
funded schools and the students served at such schools. With this 
diligent work, the Committee met the purpose for which it was 
established.
    Comment: During the work of the Committee, there had been some 
discussion that the BIE would need to implement a rule in the 2019-2020 
school year. This caused confusion and concern with an unrealistic 
timeframe to communicate with all BIE-funded schools and Tribes to 
implement a unified system.
    Response: After the final Committee meeting, it became clear that 
it would not be feasible to implement requirements established pursuant 
to this final rule for the 2019-2020 school year. The Bureau, in 
consultation with the Department of Education, determined that 
consistent with ESEA section 1111(k), schools would continue to follow 
existing State requirements from the 2019-2020 school year and that the 
BIE should implement requirements effective for the 2020-2021 school 
year. In school year 2020-2021, the BIE will implement a transitional 
accountability system using the status quo assessments (i.e., 23-
state's assessments) to determine academic achievement and progress, 
progress in English Language Proficiency, graduation rates, and decide 
on a school quality student success indicator. In fall of 2020, the BIE 
will transition its English Language standards and assessments and 
begin providing professional development and support to schools. In 
September 2020, the BIE will issue school accountability determinations 
letters to all BIE-funded schools. A three-year timeline for 
implementation of the BIE's Standards, Assessments, and Accountability 
System will be available after the final rule is published and tribal 
consultation and analysis of comments on the Agency Plan has been 
completed.
    Comment: There was overall support for the Committee's 
recommendation to undergo additional negotiated rulemaking processes to 
address the full range of issues addressed by the No Child Left Behind 
Act (NCLB) Negotiated Rulemaking Committee in 2003. These issues 
included: 25 CFR part 36, Minimum Graduation Requirements; 25 CFR part 
37, Geographic Boundaries; 25 CFR part 39, The Indian School 
Equalization Program; 25 CFR part 39, Eligibility for Special Education 
Funding; 25 CFR part 42, Student Rights; 25 CFR part 44, Grants under 
the Tribally Controlled School Act; and 25 CFR part 47, Uniform Direct 
Funding and Support for Bureau Operated Schools.
    Response: NCLB included amendments to the Education Amendments of 
1978, Public Law 95-561, Title XI. These amendments required the 
Secretary to engage in negotiated rulemaking on various subjects, 
including recommendations on the definition of Adequate Yearly Progress 
(AYP) and a formula for the equitable distribution of funds for school 
replacement and new construction, prior to publishing any proposed 
regulations authorized under the Education Amendments of 1978, Public 
Law 95-561, as amended, or the Tribally-Controlled Schools Act of 1988, 
Public Law 100-297, as amended. The ESEA as amended by ESSA did not 
include similar amendments. Instead, ESEA as amended directed the 
Secretary to undergo a rulemaking process to develop regulations to 
govern requirements for standards, assessments, and an accountability 
system at BIE-funded schools. As such, the Committee was tasked with 
developing a recommendation on such a rule. However, the BIE recognizes 
the

[[Page 17012]]

need to review the regulations identified by the Committee to determine 
what further rulemaking may be necessary and will undergo additional 
rulemaking procedures and tribal consultation as appropriate.
    Comment: Numerous commenters stated their concern with the 
Memorandum of Agreement (MOA) between the Department of Education and 
the Department. In particular, tribal representatives felt that the 
Departments should engage in a tribal consultation process prior to the 
two agencies making an agreement.
    Response: Interior and the Department of Education will jointly 
engage in tribal consultation on a new MOA under ESEA section 8204(a).
    Comment: During in-person tribal consultations, several commenters 
expressed concern about the lack of certified teachers available for 
rural schools, as well as teachers for certain content areas, where 
competing salaries offered by the local public schools may impact the 
ability of BIE-funded schools to recruit and retain science, 
mathematics, and Native American language teachers, as well as special 
education teachers.
    Response: The BIE acknowledges and recognizes the need for 
effective and certified teachers. Title II, Part A funds may be used to 
support reform efforts with entities that oversee educator preparation, 
standards, certification, licensure, and tenure.
    Comment: Numerous commenters expressed support of the continued use 
of the Northwest Education Association (NWEA) assessment instruments as 
they reflect years of data on American Indian students. The NWEA 
assessment instruments provide for an interim assessment that provides 
teachers and schools data points to measure growth three times a year.
    Response: The BIE contracted with NWEA as an interim assessment for 
all BIE-funded schools for over 10 years and recognizes the value of 
the data generated using such assessments. The BIE's contract with NWEA 
ended September 2019, and the BIE will follow the required government 
procurement processes that emphasize competition in acquisitions to 
acquire assessment instruments. This rule does not prohibit a BIE-
funded school from conducting an interim assessment outside of the 
Agency Plan.
    Comment: Several commenters inquired about how the BIE's 
requirements for standards, assessments, and an accountability system 
would be funded to ensure fiscal allocations would be available to 
operate at the school level to implement a Bureau-wide unified system.
    Response: As a Federal agency, the amount of funding available to 
the BIE is subject to the availability of appropriations as provided by 
Congress through the annual appropriations process. The BIE receives 
funding from several strands of Federal funding, including funds 
appropriated by Congress to the Department of Education under Title I 
of ESEA.
    Comment: Quite a few commenters voiced serious concerns around the 
effects of trauma, and the epidemic of substance abuse and suicide, 
which seriously impact the teaching and learning environment of 
students in their respective communities.
    Response: The BIE recognizes and shares such concerns that are felt 
across Indian Country, and has made addressing such matters a priority 
within the Bureau's Strategic Direction, which emphasizes a need to 
define ways to support student health, wellness, and safety. The BIE is 
developing programs and supports for student behavioral health and 
providing needed technical assistance to schools so that they can 
implement comprehensive behavioral health plans, programs, and 
interventions that foster an encouraging and supportive learning 
environment.
Comments Directly Related to the Proposed Rule
    Comment: Several commenters expressed concern that the BIE intended 
to restrict the use of Native American languages in the proposed rule.
    Response: It was not the intention of the BIE to convey such a 
message or raise such concerns. The BIE honors the unique and important 
status of Native American languages and is committed to the 
preservation, protection, and promotion of the right and freedom of 
Native Americans to use, practice, and maintain Native American 
languages. The BIE is committed to encouraging and supporting the use 
of Native American languages as a medium and mode of instruction, and 
to provide for comprehensive multicultural and multilingual educational 
program, including the production and use of instructional materials, 
culturally appropriate methodologies, and teaching and learning 
strategies that will reinforce, preserve, and maintain Indian and 
Alaska Native languages, cultures, and histories. The right to use 
Native American languages as a medium of instruction is enshrined in 
several authorities outside of this part, including the Native American 
Languages Act of 1990, 25 U.S.C. 2901 et seq., and 25 CFR part 32, 
which has the status of codified law through 25 U.S.C. 2003 and 
requires a comprehensive multicultural and multilingual education 
program.
    In order to address concerns, the BIE has added language to Sec.  
30.100 specifically referencing rights under statutes such as the 
Native American Languages Act of 1990. This addition also responds to 
commenters who wanted to see the language of the existing Sec.  30.102 
retained specifying, among other things, that nothing in this part is 
intended to effect, modify, or diminish the sovereign rights of Indian 
Tribes. BIE has also added language in new 30.105(h) similar to the 
language of 34 CFR 200.6 (j)-(k) regarding Native American language 
assessments at Native American immersion schools. As described below 
regarding comments on peer review, the BIE has also added language in a 
new 30.105(h) indicating that, where Native American languages are used 
for academic assessments, those assessments are valid and reliable for 
the purposes for which they are intended. The BIE intends to promulgate 
guidance in cooperation with the Department of Education, Tribes, and 
other stakeholders on the use of content assessments in a Native 
American language for Title I compliance purposes. The BIE has also 
modified the language in Sec.  30.101 defining the term ``English 
learners'' to clarify that the definition of ``English learner'' is not 
intended to restrict the use of Native American languages as a medium 
of instruction. Finally, the BIE acknowledges that Native American 
language content assessments may be used independent of the waiver and 
alternative proposal process. In addition, although we intend to issue 
further guidance on the use of content assessments in Native American 
languages for Title I purposes, nothing in these regulations prevents 
the use of assessments of proficiency in a Native American language for 
schools that teach a Native American language.
    Comment: Some commenters recommended including specific provisions 
in the final rule governing the use of Native American languages as a 
medium of instruction.
    Response: The changes described above provide more clarity on the 
use of Native American language content assessments. The BIE does not 
want to unintentionally restrict the use of Native American languages. 
The use of Native American languages as a medium of instruction is a 
complicated and important topic, and BIE wants to ensure that the topic 
is addressed carefully, thoughtfully, and in

[[Page 17013]]

coordination with the Department of Education (on Native American 
language content assessments), Tribes, and other stakeholders. For 
instance, while formal peer review of Native American language content 
assessments might be difficult, there are ways to demonstrate that the 
assessments are valid and reliable for the purposes for which they are 
intended, and that will ensure a high-quality education for students in 
schools or programs using a Native American language as a medium of 
instruction. While the BIE intends to promulgate guidance outside of 
this rule, the BIE has incorporated language into the final rule 
specifically recognizing the right to use Native American languages as 
a medium of instruction and has included language in Sec.  30.105(e) 
specifying the development of guidance regarding assessments.
    Comment: A few commenters expressed an interest in incorporating 34 
CFR 200.6(j) and (k) into 25 CFR part 30 regulations.
    Response: The BIE has added language similar to 34 CFR 200.6(g), 
(j), and (k) but modified to meet the unique circumstances and needs of 
BIE-funded schools as opposed to States, and to recognize the sovereign 
rights to use Native American language as a medium of instruction. 
Further, instead of referencing ``peer review,'' the language added by 
the BIE refers to ``technical validity and reliability'' to support the 
uniqueness of Native American language assessments, as well as to 
ensure those assessments are proper for the uses in which they are 
administered.
    Comment: Several commenters offered suggestions with regard to 
Native American languages. For example, some commenters argued that a 
provision in Title III, section 3127, of the Act regarding students in 
schools in Puerto Rico and in Native American language programs 
provides a special exemption from Title I assessment requirements.
    Response: The BIE appreciates the detailed analysis accompanying 
such comments. However, the provisions of section 3127 only apply to 
entities that receive Title III funds. Title III formula grants are 
provided to the 50 States, the District of Columbia, the Commonwealth 
of Puerto Rico, and each of the outlying areas. See ESEA sections 3111 
and 8104(48). In addition, BIE-funded schools are individually eligible 
for Title III discretionary grant funding. ESEA section 3112 provides 
that the following are eligible entities for the Title III Native 
American or ``NAM'' program: Indian Tribes; Tribally sanctioned 
educational authorities; Native Hawaiian and Native American Pacific 
Islander native language educational organizations; BIE-operated or 
funded schools; schools operated under a grant or contract in 
consortium with another such school or tribal or community 
organization; and BIE-operated schools and institutions of higher 
education in consortium with grant or contract schools. However, the 
BIE does not receive Title III funding and there is no set-aside or 
other provision in Title III applicable to the BIE itself. Thus, 
arguments linking BIE to Title III are not persuasive. Therefore the 
BIE has made no changes to the final rule in response to such comments.
    Comment: A few commenters expressed concern with the definition of 
``Native American language'' included in the proposed rule and either 
recommended alternatives or suggested defining the term in relation to 
the Native American Languages Act of 1990.
    Response: The BIE has modified the definition of ``Native American 
language'' in the final rule to include a citation to the Native 
American Languages Act of 1990.
    Comment: Several commenters asked about references in the proposed 
rule to ``peer review,'' in particular as to its use in the proposed 
Sec.  30.105(e), which would have provided that ``all required BIE 
assessments'' undergo peer review to ensure that the assessments meet 
all applicable requirements.
    Response: The BIE has added a definition of ``peer review'' that 
clarifies that the term ``peer review,'' as used in the proposed rule, 
refers to a process through which an entity demonstrates the technical 
soundness of an assessment system, including its validity and 
reliability for the purposes for which the assessments are intended. 
The BIE has further revised Sec.  30.105(e) to clarify that the peer 
review requirement, as defined in the proposed rule, does not apply to 
Native American language assessments. As noted above, and as provided 
in the revised Sec.  30.105(e), the BIE will promulgate guidance on the 
use of Native American language assessments in consultation with the 
Department of Education, Tribes, and other stakeholders to ensure that 
such assessments are technically valid and reliable for the purposes 
for which they are intended.
    Comment: There was considerable support for the Committee's 
recommendation, as reflected in the proposed rule, for the BIE to 
develop a Standards, Assessments, and Accountability Plan (SAAP) in 
accordance with ESEA section 1111 and for including this expectation of 
the BIE in the final rule as proposed in Sec.  30.103(b).
    Response: The BIE recognizes this support and will keep the plan in 
the final rule as proposed in Sec.  30.103(b). The BIE is changing the 
name of the plan in the final rule from ``Standards, Assessments, and 
Accountability System Plan (SAAP)'' to ``Agency Plan (AP).'' The name 
change is a non-substantive change intended to clarify the plan is by a 
Federal agency and parallels the State Plans of States. Plans developed 
by State Departments of Education describe how such departments will 
meet Federal education requirements pursuant to ESEA. The Agency Plan 
is intended to be a living document that will not only encompass the 
Bureau's standards, assessments, and accountability system, but will 
also cover a broader range of topics including the Bureau's guidance on 
Native Languages, waivers, and school support and improvement.
    Comment: Numerous comments questioned the use of the term 
``alternative proposal'' as applied to the waiver and alternative 
requirements process in subpart B of the proposed rule, Sec. Sec.  
30.112 to 30.119. Others asked for clarity as to who has the authority 
to waive the Secretary's requirements and propose alternative 
requirements.
    Response: In response to these comments, the BIE added language to 
the definition of ``alternative proposal'' and revised it to ``Proposal 
for alternative requirements'' to provide clarity of the authority of 
school boards relative to the government-to-government relationship 
between Tribes and the BIE. The BIE has also split the definitions of 
``tribal governing body or school board,'' and added to the definition 
of ``waiver'' to provide further clarity. These definitions incorporate 
definitions from the BIE's underlying statutory authorities. These 
definitions further provide that in the case of a conflict between a 
tribal governing body's proposal for alternative requirements and a 
school board's proposal for alternative requirements, consistent with 
the government-to-government relationship and the right to the exercise 
of sovereignty in education, a tribal governing body's proposal has 
precedence.
    Comment: A few commenters requested clarification on the use of the 
term ``English learner'' since the proposed rule included an entire 
section on English learners, and others sought clarity on the effect 
that this definition would have on Native American language learners.
    Response: In response to such comments, the BIE has added the

[[Page 17014]]

definition of ``English learner'' from section 8101(20) of the ESEA. 
The addition should clarify the differences between an English language 
learner and Native American language learner. The definition of 
``English learner'' also now includes a note explaining that the 
definition is not intended to affect the right to use Native American 
language as a medium of instruction. However, as required by Federal 
law and as provided in Sec.  30.105(h)(2), English learners must still 
receive English language services. This requirement would not apply to 
other students at schools that use a Native American language as the 
medium of instruction who are not English learners.
    Comment: There was overwhelming support for an extended-year cohort 
graduation rate as allowing schools to assist students in completing 
their coursework when there is a need for additional years beyond a 4-
year cohort and preventing school graduation rates from being 
negatively impacted.
    Response: The BIE added a definition of ``extended-year cohort 
graduation rate'' in Sec.  30.111 that recognizes that there are high 
schools that prefer a 5-year cohort. The use of the extended-year 
cohort graduation rate will be addressed further in the BIE Agency Plan 
on which the BIE will consult with Tribes and stakeholders prior to 
finalizing.
    Comment: Multiple commenters expressed concern with how technical 
assistance will be provided by the Bureau and indicated that technical 
assistance should not only be explicit in the waiver subpart, but the 
Bureau should also provide clarity throughout the proposed rule.
    Response: The Bureau added a definition of ``technical assistance'' 
in the final rule to provide clarity on the types of technical 
assistance available relative to support and improvement activities, 
waivers, and the development of alternative proposals.
    Comment: Several commenters expressed concern that technical 
assistance was not mentioned in other sections of the proposed rule 
other than subpart B.
    Response: The BIE has added language in the final rule to provide 
technical assistance as requested in writing in Sec. Sec.  
30.108(a)(3)(i), 30.109(c)(3), and 30.110(h).
    Comment: Commenters were overwhelmingly supportive of the 
Committee's recommendation for the inclusion of stakeholder 
consultation, as reflected in proposed Sec. Sec.  30.103(c) and 
30.111(b) introductory text and (b)(7), because consultation is 
essential to fulfilling the purpose of these rules to define the 
standards, assessments, and an accountability system.
    Response: The BIE agrees with the Committee that meaningful 
engagement with stakeholders is critical to the success of the BIE's 
education mission. The BIE has added a definition of ``tribal 
consultation'' that incorporates tribal consultation as described in 
the Department's Tribal Consultation Policy. The BIE has further added 
language at the end of Sec.  30.103(a) to incorporate language 
recommended by the Committee that was previously located at Sec.  
30.111(b) introductory text and (b)(7) of the proposed rule, indicating 
the Secretary must periodically review and revise the requirements for 
the accountability system in consultation with Tribes and other 
stakeholders, to combine a virtually identical concept in proposed 
Sec.  30.103(a) regarding the periodic review and revision of 
requirements. This change avoids the possibility that different kinds 
of processes might apply to different requirements established pursuant 
to this part.
    Comment: There were many comments regarding the Committee's 
recommendation, as reflected in the proposed rule, to include tribal 
civics as a topic for instruction and to be phased in for children from 
grades K-12. Numerous commenters were in support of inclusion of the 
concept of tribal civics in the final rule. Some tribal representatives 
stated that it should be up to the individual Tribes to teach tribal 
civics given each Tribe's unique history and relationship with the 
United States.
    Response: The BIE is retaining tribal civics in the final rule. In 
accordance with the Committee's recommendation, requirements for tribal 
civics will be phased in to the BIE's requirements for standards, 
assessments, and an accountability system. Details of how the BIE will 
address the implementation of tribal civics will be addressed in the 
Agency Plan and will be included as a topic in tribal consultation on 
such Agency Plan. The BIE understands and is cognizant of the concerns 
raised by some tribal representatives. The BIE anticipates developing 
requirements for tribal civics in a way that would focus on the 
relationship between the United States and Tribes broadly, and that 
would not supplant a Tribe's role in teaching its own unique history.
    Comment: Some commenters requested clarity on the 1% cap on the use 
of alternate assessments for students with the most significant 
cognitive disabilities, in the proposed rule in Sec.  30.108.
    Response: The BIE added language to Sec.  30.108(a)(2)(ii) in the 
final rule to clarify that the 1% cap applies to all BIE-funded 
schools, and that information from the individualized education program 
(IEP) team submitted through the BIE's student information system will 
be used to justify exceeding the 1% cap.
    Comment: Several commenters expressed support for including both 
science and tribal civics in the BIE accountability system.
    Response: This final rule provides that both science and tribal 
civics will be phased into the BIE accountability system, starting as a 
School Quality or Student Success (SQSS) indicator, and that their 
inclusion as an SQSS indicator will be revisited as the new 
accountability system is implemented with the possibility that the 
method of their inclusion in the accountability system may change in 
the future.
    Comment: Several commenters requested clarity regarding 
comprehensive school support and improvement activities and targeted 
support and improvement activities as this was not clear in the 
proposed rule.
    Response: As described above, the BIE has added language to Sec.  
30.111 of the final rule to provide clarity and to reflect language 
within section 1111(c)-(d) of ESEA in regard to school support and 
improvement activities, taking into account the unique circumstances 
and needs of BIE-funded schools and the students served by BIE-funded 
schools. Changes were similarly applied to final subpart C, Sec. Sec.  
30.120 through 30.124.
    Comment: Numerous comments expressed support of the inclusion of 
Sec.  30.112(g) (now Sec.  30.113) as recommended by the Committee, 
allowing a tribal governing body or school board to remain with the 
State standards and assessments outside of the process for waiver and 
approval of alternative requirements. At least one commenter opined 
that the proposed option would not work to fix accountability issues at 
BIE-funded schools.
    Response: This language was recommended by the Committee in 
response to a specific concern expressed by a Committee member 
regarding a specific school that might lose academic funding provided 
by a State if it did not use the State's requirements. The language was 
also recommended by the Committee at a time when there was an 
expectation that the BIE would be required to implement its standards, 
assessments, and accountability system during the 2019-2020 school 
year, which caused concerns for effective implementation of such 
requirements

[[Page 17015]]

on such a short timeline. The cause of such concerns has since been 
removed. The BIE has removed the language recommended by the Committee. 
The BIE supports tribal sovereignty in education and is mindful of 
those commenters who felt that to remove this language and require 
tribal governing bodies or school boards to follow the process for 
waivers and alternative proposals would be onerous. However, the BIE 
believes that if a tribal governing body or school board proposes to 
use requirements that have already been approved by the Secretary of 
Education, such as a State's requirements, the approval process should 
be as close to automatic as possible, provided that the State agrees to 
the use of their requirements. The BIE further anticipates that if a 
tribal governing body or school board works with entities capable of 
providing technical assistance prior to submitting a proposal for 
alternative requirements that such alternative requirements should 
likewise experience expedited processing.
    The BIE further notes that the process described in the Committee's 
recommendation for Sec.  30.112(g) and the process for waivers and 
alternative proposals in subpart B of the proposed rule, Sec. Sec.  
30.112 to 30.119 and in ESEA section 8204(c), only differ in requiring 
a tribal governing body or school board to also notify the Secretary of 
Education. The BIE notes that this change in the final rule conforms to 
the understanding underlying the Committee's recommendation that BIE-
funded schools would generally follow the BIE's requirements as part of 
a system of unified requirements. Finally, the proposed language 
ignores the statutory role of the Secretary of Education in the process 
of approving requirements alternative to those implemented pursuant to 
this final rule.
    Comment: Some commenters requested more certainty in the waiver and 
alternative proposal process, such as specific timelines and milestones 
endorsed by some Committee members.
    Response: The Committee ultimately recommended that the BIE and the 
Department of Education work together to develop a timeline for review 
of alternative proposals. The final rule includes the statutory 
requirement that alternative proposals be submitted within 60 days of a 
tribal governing body or school board's decision to waive the 
requirements developed and implemented by the BIE. The regulations 
provide flexibility, including that a tribal governing body or school 
board may request an indefinite extension of this time. Additionally, 
the final rule advises a tribal governing body or school board to seek 
technical assistance prior to waiving the requirements developed and 
implemented by the BIE in order to maximize the time available to 
develop alternative proposals. Until such alternative proposals have 
been approved, a tribal governing body or school board must continue to 
follow the Secretary's requirements. The final rule explains that the 
BIE will provide a status update within 120 days of receipt of an 
alternative proposal, and every 30 days thereafter. Since ESEA, as 
amended, does not provide the Secretary with the authority to regulate 
the conduct of the Secretary of Education regarding waivers and 
approval of alternative proposals, these provisions in the final rule 
are only binding on the BIE. However, in practice, the BIE and the 
Department of Education work closely on such matters.
    Comment: Two commenters suggested a mechanism for the automatic 
approval of alternative proposals if the Secretary and the Secretary of 
Education do not timely respond to alternative proposals.
    Response: Section 8204(c) of the Act does not provide for automatic 
approval, and ESEA, as amended, does not provide the Secretary of the 
Interior with the authority to regulate the Secretary of Education 
regarding the approval of alternative proposals. As such, while the 
Part 30 regulations could provide for the automatic approval of the 
Secretary of the Interior, these regulations could not provide for 
automatic approval by the Secretary of Education. In any case, while 
the BIE respects tribal sovereignty in education, the BIE also has a 
statutory obligation to ensure that the programs of the BIE-funded 
school system are of the highest quality and provide for the basic 
elementary and secondary academic services to students served at BIE-
funded schools, including meeting the unique educational and cultural 
needs of such students. Consistent with such obligations, the BIE 
believes that caution needs to be exercised when determining the 
requirements that are used at BIE-funded schools. While the BIE is 
concerned that procedures for the automatic approval of alternative 
proposals may not be in the best interest of students served by BIE-
funded schools, the BIE is committed to providing expeditious reviews 
of submitted and compliant waivers and alternative proposals.
    Comment: Several commenters sought clarity on what could be waived 
and what alternative proposals might look like.
    Response: Section 8204(c)(2) of the Act provides that the 
requirements developed and implemented may be waived by a tribal 
governing body or school board in part or in whole. The BIE believes 
that this language, combined with flexibility implied by the words 
``taking into account the unique circumstances and needs of such 
schools and the students served'' could encompass a wide variety of 
possibilities, including potentially innovative proposals as well as 
those responsive to unique cultural and linguistic needs. As such, it 
would be difficult and potentially restrictive of such innovative 
approaches to attempt to quantify such possibilities in the part 30 
regulations. However, the final rule explains that BIE will collaborate 
with the Department of Education to develop templates consistent with 
the requirements of the Act, as amended, to guide tribal governing 
bodies or school boards. This is consistent with prior practice, as is 
the promulgation of guidance.
    Comment: One commenter suggested that the waiver and alternative 
proposal process described in the proposed rule was onerous and 
burdensome.
    Response: Section 8204(c) of the Act provides the basic contours of 
the procedures for waiver and approval of proposals for requirements 
alternative to those developed and implemented by the BIE. Section 
8204(c) provides that a tribal governing body or school board may 
waive, in part or in whole, the requirements established by the 
Secretary, where the requirements are determined by a tribal governing 
body or school board to be inappropriate. If such requirements are 
waived, Section 8204(c)(2) requires the tribal governing body or school 
board to submit to the Secretary within 60 days a proposal for 
alternative standards, assessments, and accountability system, if 
applicable, consistent with section 1111, that takes into account the 
unique circumstances and needs of such school or schools and the 
students served. Such alternative requirements will be approved by the 
Secretary and the Secretary of Education unless the Secretary of 
Education determines that the proposed alternative requirements do not 
meet the requirements of section 1111, taking into account the unique 
circumstances and needs of such school or schools and the students 
served. As this process is described in statute, the BIE is unable to 
change the procedures in the final rule. While the BIE will not create 
a mechanism for the automatic approval of alternative proposals as 
other commenters had requested, the BIE is committed to providing 
expeditious

[[Page 17016]]

reviews of submitted and compliant waivers and alternative proposals.
    Comment: Some commenters suggested that alternative requirements 
(also known as waivers) developed and approved under ESEA as amended by 
the No Child Left Behind Act of 2001 should not have to transition to 
the requirements developed by the BIE pursuant to the Part 30 
regulations developed in response to ESEA as amended by the ESSA.
    Response: The BIE is working with the Department of Education on an 
orderly transition for the two Tribes with approved alternative 
requirements. Such alternative requirements will need to meet the 
requirements of section 1111 of the Act, as amended.

IV. Section-by-Section Analysis

    This portion of the preamble previews the final rule and highlights 
certain aspects of the rule that may benefit from additional 
explanation.
    This final rule amends part 30 as a whole. The title of part 30 
will change from ``Adequate Yearly Progress'' to ``Standards, 
Assessments, and Accountability System.'' This final rule describes 
rules for establishing requirements for a unified standards, 
assessments, and an accountability system for BIE-funded schools 
consistent with section 1111 on a national basis, taking into account 
the unique circumstances and needs of such schools and the students 
served by such schools. This final rule also describes rules for waiver 
of such requirements in part or in whole and approval of alternative 
proposals for requirements; and further provides rules for school 
comprehensive support and improvement activities. This final rule also 
recognizes the unique status and importance of Native American 
languages and the sovereign right of Tribes to use such languages as a 
medium of instruction.

What is the purpose of this part? (Sec.  30.100)

    This section has been modified from the proposed rule. As 
recommended by some commenters, the section adapts language from the 
old 25 CFR 30.102 and provides that nothing in part 30 shall be 
construed to affect, modify, or diminish the sovereign rights of 
Tribes, statutory rights under law, the Secretary of the Interior's 
trust responsibility for Indian education, nor the trust responsibility 
of the United States to Indian Tribes or individual Indians. In 
response to other commenters concerned that a lack of language 
concerning the use of Native American languages as a medium of 
instruction, this section also specifically enumerates the Native 
American Languages Act of 1990 and the right to use Native American 
languages as a medium of instruction. Since this section recognizes the 
right to use Native American languages as a medium of instruction, 
language recommended by the Committee for Sec.  30.103(e) concerning 
Native American language assessments has been removed. The BIE has 
added language to Sec.  30.105(h) concerning the use of assessments in 
Native American languages for Title I compliance purposes and has 
attempted to distinguish such assessments in the final rule from others 
such as assessments of proficiency in a Native American language or for 
other purposes. The BIE has also incorporated language from 25 CFR 
32.4(h) concerning the production and use of instructional materials, 
culturally appropriate methodologies and teaching and learning 
strategies that will reinforce, preserve, and maintain Indian and 
Alaska Native languages, cultures, and histories which school boards, 
Tribes, and Alaska Native entities may utilize at their discretion.

What definitions apply to terms in this part? (Sec.  30.101)

    As indicated in Section II and III above, the BIE modified and 
added definitions in response to commenters to clarify terms used in 
the rule. In response to comments, the BIE has added definitions for 
``agency,'' ``agency plan,'' and ``English learner.'' The definition of 
``peer review'' has been modified to explain that peer review means a 
process through which the technical soundness of an assessment, 
including its validity and reliability is demonstrated. The BIE has 
added language to Sec.  30.105(e)(2) explaining that it will develop 
non-regulatory guidance, in collaboration with the Department of 
Education, on the use of Native American language content assessments 
in consultation with Tribes and other stakeholders. The definition of 
``Native American language'' has been modified to include a reference 
to the definition of the same in 25 U.S.C. 2021(20).
    In response to comments and for clarity within the rule, BIE has 
added a definition of ``technical assistance'' and describes two types 
of technical assistance: Technical assistance with regard to 
comprehensive support and improvement and technical assistance with 
regard to proposals for alternate assessments. In response to requests 
for clarity on the authority to exercise the right to waive the BIE's 
requirements and submit proposals for requirements alternative to such 
requirements, the BIE has split the definition of ``tribal governing 
body or school board'' into two separate definitions for ``tribal 
governing body'' and ``school board.'' The BIE has modified the 
definitions of ``alternative proposal'' and ``waiver'' for similar 
reasons. The BIE has also added a definition of ``academic school 
year'' to establish a timeframe for acquiring alternate assessments, if 
applicable. The BIE has further modified the definition of ``Tribally 
controlled school'' to incorporate language from 25 U.S.C. 2511(9). The 
BIE has added a definition of ``tribal consultation'' to add 
clarification to how the BIE meaningfully and timely consults with 
Tribes and other stakeholders.

Standards, Assessments, and Accountability System Requirements (Subpart 
A)

    This subpart in the rule outlines how the Secretary will develop or 
implement requirements for standards, assessments, and an 
accountability system at BIE-funded schools.

What does the Act require of the Secretary? (Sec.  30.102)

    This section contains non-substantive changes from the proposed 
rule for clarity through the inclusion of the words ``by such schools'' 
at the end of paragraph (b) and the words ``that seeks a waiver 
described in paragraph (b).''

How will the Secretary implement standards, assessments, and 
accountability system requirements? (Sec.  30.103)

    This section includes language to support the periodic review and 
revision of the Secretary's requirements. The BIE has removed language 
recommended by the Committee for this section at Sec.  30.111(b) 
regarding the periodic review and revision of the accountability system 
in use at BIE-funded schools since this language is redundant in light 
of Sec.  30.103(a)-(b). For consistency with the text of similar 
language in section 1111(a)(6)(A)(ii) providing that State plans shall 
``be periodically reviewed and revised as necessary . . . to reflect 
changes in the State's strategies and programs,'' the BIE has 
incorporated some of the language of Sec.  30.111(b)(7) into Sec.  
30.103(a).
    The BIE replaced a reference to a ``Standards, Assessments and 
Accountability Plan (SAAP)'' with a reference to an ``Agency Plan'' to 
clarify the plan is by a Federal agency and parallels the State Plans 
of States. The Agency Plan term also reflects that the plan is intended 
to be a living document that will encompass the Bureau's

[[Page 17017]]

standards, assessments, and accountability system, but will also cover 
topics including the Bureau's guidance on Native Languages and waivers. 
The BIE deleted some language recommended by the Committee describing 
ongoing consultation with clear description of meaningful consultation 
with American Indian Tribes and Alaska Native villages, schools, 
parents, and other stakeholders for consistency with the Department's 
existing tribal consultation policy regarding tribal consultation. 
Since Sec.  30.100 recognizes the right to use Native American 
languages as a medium of instruction, and has added Sec.  30.105(h) 
regarding the use of Native American language assessments for Title I 
compliance purposes, language recommended by the Committee for a 
paragraph (e) has been removed.

How will the Secretary implement requirements for standards? (Sec.  
30.104)

    This section retains the proposed provision reflecting the 
Committee's recommendation to include a requirement for academic 
standards in tribal civics. The BIE has modified the language of 
paragraphs (a) and (b) of this section for clarity and consistency with 
section 1111 of the Act. Paragraph (c) of this section has been 
modified to add the word ``content'' in front of the word ``standards'' 
in the first instance in which it is used. The BIE has also specified a 
requirement in paragraph (f) for English language proficiency 
standards. The BIE has also made other non-substantive changes to this 
section.

How will the Secretary implement requirements for academic content 
assessments? (Sec.  30.105)

    The section includes certain non-substantive changes. Consistent 
with the concept of phasing tribal civics into BIE's requirements, 
Sec.  30.105(a) has been modified to provide that tribal civics 
assessments will be developed as funding becomes available. The BIE has 
incorporated into paragraph (b)(9)(i)(C) of this section a suggestion 
from the comments on the proposed rule to include a reference to the 
definition of ``children with disabilities'' as defined in the 
Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et 
seq.). In paragraph (c) the BIE has added references to ``end of 
course'' assessments. Paragraph (e) has been modified in response to 
comments regarding the use of Native American languages to acknowledge 
the difficulty of peer review of Native American language assessments. 
The language now clarifies that the peer review requirement does not 
apply to tribal civics and non-content Native American language 
assessments. However, consistent with the new definition of ``Peer 
review,'' Native American language assessments in ``content'' areas 
intended for Title I compliance purposes must be technically valid and 
reliable for the purposes for which they are intended.
    In response to both comments expressing concern that the proposed 
rule restricted the use of Native American language assessments and 
comments supporting the inclusion of a provision like that in the 
Department of Education's regulations at 34 CFR 200.6, paragraphs (j) 
and (k), the BIE has added a new paragraph (h). The language is similar 
to that in the regulations of the Department of Education but modified 
to reflect the difficulty of peer review of Native American language 
assessments, and to change requirements for peer review to a 
requirement that such assessments be technically valid and reliable for 
the purposes for which they are intended.

How will the Secretary provide for the inclusion of all students in 
assessments? (Sec.  30.106)

    This section contains no changes from the proposed rule.

How will the Secretary include students with disabilities in 
assessments? (Sec.  30.107)

    This section contains no changes from the proposed rule.

How will the Secretary provide for alternate assessments for students 
with the most significant cognitive disabilities? (Sec.  30.108)

    The BIE has included some non-substantive changes to this section 
and has fixed an error in word choice identified by commenters. In 
response to comments, the BIE has clarified that the one (1) percent 
cap referred to in paragraph (a)(1) of this section refers to one (1) 
percent of the total number of ``all'' students in ``all'' BIE-funded 
schools for each subject who take an alternate assessment aligned with 
alternate academic achievement standards. In response to comments, the 
BIE has added language to paragraph (a)(2)(ii) to explain that 
information explaining the alternate assessments to be used consistent 
with a student's individualized education plan (IEP) will be uploaded 
to the BIE's student information system. This information will be used 
to justify exceeding the 1% cap. In response to comments, BIE has also 
added language to paragraph (a)(3)(i) specifying that BIE will provide 
technical assistance upon written request with regard to individualized 
education program (IEP) teams.

How will the Secretary include English learners in academic content 
assessments? (Sec.  30.109)

    The BIE has made some non-substantive changes to this section. In 
response to comments, the BIE has added language to paragraph (c) of 
this section specifying that the BIE will provide technical assistance 
upon written request to BIE-funded schools and parents in regard to 
English language learners.

How will the Secretary ensure BIE-funded schools will provide for 
annual assessments of English language proficiency for English 
learners? (Sec.  30.110)

    The BIE has added language to paragraph (a) of this section to 
clarify that annual assessments in English proficiency must be valid 
and reliable. In response to comments, the BIE has also added a new 
paragraph (h) specifying that the BIE will provide technical 
assistance, including training teachers on how to administer 
assessments, upon written request to support BIE-funded schools with 
the BIE's alternate English language proficiency assessments.

How will the Secretary implement requirements for an accountability 
system? (Sec.  30.111)

    The BIE has removed language recommended by the Committee and 
incorporated into the proposed rule at Sec.  30.111(b) language 
regarding consultation and the periodic review and revision of the 
accountability system in use at BIE-funded schools because that 
language was redundant to Sec.  30.103(a)-(b). For consistency with the 
text of similar language in section 1111(a)(6)(A)(ii) providing that 
State plans shall ``be periodically reviewed and revised as necessary . 
. . to reflect changes in the State's strategies and programs,'' the 
BIE has incorporated some of the language of Sec.  30.111(b)(7) into 
Sec.  30.103(a).
    The BIE supports the Committee's recommendation that science and 
tribal civics be incorporated into the requirements for an 
accountability system. To this end, the BIE has consolidated 
subsections (c) and (d) of this section as it existed in the proposed 
rule and has provided that both science and tribal civics requirements 
will be phased into the accountability system as School Quality or 
Student Success (SQSS) indicators. This new paragraph further provides, 
consistent with the language recommended by the

[[Page 17018]]

Committee concerning tribal civics, that the use of both science and 
tribal civics in the accountability system will be revisited as the 
accountability system is implemented. The BIE has added language 
throughout this section in response to comments seeking clarity on 
school comprehensive and targeted support and improvement activities 
consistent with section 1111(c)-(d) regarding support and improvement 
activities. In response to comments, the BIE has also added language to 
Sec.  30.111(h)(2) specifying that the BIE will provide technical 
assistance to schools identified for comprehensive support and 
improvement, targeted support and improvement, or additional targeted 
support upon request in writing.
    BIE also added an explanation of the term ``extended-year cohort 
graduation rate'' to this section to recognize that it may be 
appropriate to consider for purposes of accountability, in addition to 
schools' four-year adjusted cohort graduation rate, one or more 
extended-year rates (i.e., a 5-year adjusted cohort graduation rate). 
The use of the extended-year cohort graduation rate will be addressed 
further in the BIE Agency Plan on which the BIE will consult with 
Tribes and stakeholders prior to finalizing.

Accountability, Waiver of Requirements, Technical Assistance, and 
Approval of Alternative Requirements (Subpart B)

May a tribal governing body or school board waive the Secretary's 
requirements for the standards, assessments, and accountability system? 
(Sec.  30.112)

    In response to comments regarding when alternative requirements 
will be effective, the BIE has added language to this section 
clarifying that alternative requirements will generally be effective in 
the school year following the school year in which such alternative 
requirements have been approved. The final rule specifies a general 
effective date in ``the school year following the school year'' to 
provide time for proper implementation. The final rule uses the word 
``generally'' to reflect the fact that in some circumstances it may not 
be feasible to implement alternative requirements in the next school 
year, such as due to a lack of appropriated funds. The use of the word 
``generally'' is also intended to signify that there may be some 
circumstances in which alternative requirements could be implemented 
during the school year in which they have been approved, and also 
recognizes that in some circumstances plans for alternative 
requirements might themselves contemplate a gradual phasing in of such 
requirements.

How does a tribal governing body or school board waive the Secretary's 
requirements? (Sec.  30.113)

    The BIE has made some non-substantive changes to this section. In 
order to address concerns over accountability regarding the BIE's 
responsiveness to notices of waivers, the BIE has added language to 
paragraph (b) to specify that technical assistance must be requested in 
writing. The BIE has similarly specified in paragraph (d) that a 
request for extension of the statutory 60-day deadline for submission 
of a proposal for alternative requirements should be in writing. Such 
specification in both subsections (b) and (d) should help to create a 
paper trail for accountability purposes. Such specification further 
should be broad enough to accommodate tribal laws concerning official 
tribal government action.

What should a tribal governing body or school board include in a 
proposal for alternative requirements? (Sec.  30.114)

    This section contains no changes from the proposed rule.

May proposed alternative requirements use parts of the Secretary's 
requirements? (Sec.  30.115)

    This section contains no changes from the proposed rule.

Will the Secretary provide technical assistance to tribal governing 
bodies or school boards seeking to develop alternative requirements? 
(Sec.  30.116)

    This section has been modified from the proposed rule to specify 
that requests for technical assistance regarding the development of 
alternative proposals should be submitted in writing to the Director.

What is the process for requesting technical assistance? (Sec.  30.117)

    This section has been modified from the proposed rule to provide 
that requests for technical assistance regarding the development of 
alternative proposals should be sent to the Department of Education as 
well as the BIE. This change acknowledges the statutory requirement for 
both Departments to provide technical assistance in this capacity.

When should a tribal governing body or school board request technical 
assistance? (Sec.  30.118)

    This section has been modified from the proposed rule to specify 
that a request for technical assistance regarding the development of 
alternative proposals should be in writing.

How does the Secretary review and approve alternative requirements? 
(Sec.  30.119)

    This section contains no changes from the proposed rule.

Support and Improvement (Subpart C)

    Both in response to comments seeking clarity on support and 
improvement activities, and considering a need for consistency with 
section 1111(c)-(d), the BIE has added clarifying language to this 
subpart.

How will the Secretary notify BIE-funded schools that they have been 
identified for school support and improvement activities? (Sec.  
30.120)

    This section has been modified from the proposed rule to reference 
support and improvement activities in the context of requirements for 
accountability system described in Sec.  30.111(g).

How will the Secretary implement requirements for comprehensive support 
and improvement activities? (Sec.  30.121)

    Both in response to comments seeking clarity on comprehensive 
support and improvement activities, and considering a need for 
consistency with section 1111(c)-(d), the BIE has added clarifying 
language to this section.

How will the Secretary implement requirements for targeted support and 
improvement activities? (Sec.  30.122)

    Both in response to comments seeking clarity on support and 
improvement activities, and considering a need for consistency with 
section 1111(c)-(d), the BIE has added clarifying language to this 
section.

How will the Secretary implement requirements to identify schools for 
additional targeted support? (Sec.  30.123)

    In response to comments, this section has been modified from the 
proposed rule to clarify that the lowest-performing 5% percent of 
schools referenced in the section refers to the lowest-performing 5% of 
schools identified for comprehensive support and improvement. Both in 
response to comments seeking clarity on support and improvement 
activities, and in light of a need for consistency with section 
1111(c)-(d), the BIE has added clarifying language to this section. The 
BIE has further added a reference back to a requirement for a system of 
annual meaningful differentiation in Sec.  30.111(f).

[[Page 17019]]

How will the Secretary implement continued support for BIE-funded 
schools and school improvement? (Sec.  30.124)

    Both in response to comments seeking clarity on comprehensive and 
targeted support and improvement activities, and in light of a need for 
consistency with section 1111(c)-(d), the BIE has added clarifying 
language to this section.

Responsibilities and Accountability (Subpart D)

    This rule describes ``Responsibilities and Accountability'' in 
regard to the BIE and this part.

What is required for the Bureau to meet its report responsibilities? 
(Sec.  30.125)

    This section contains no changes from the proposed rule.

What information collections have been approved? (Sec.  30.126)

    The BIE will receive the OMB Control Number for the new information 
collection regarding the waiver process.

V. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. The BIE has developed this rule in a manner consistent with 
these requirements. In addition, section 8204 of the ESEA, as amended, 
directs the Secretary of the Interior, in consultation with the 
Secretary of Education, if so requested, to use a negotiated rulemaking 
process to develop regulations for implementation of the Secretary of 
the Interior's obligation to establish requirements for the standards, 
assessments and an accountability system for BIE-funded schools. This 
rule is also part of the Department's commitment under the Executive 
order to reduce the number and burden of regulations.

B. Reducing Regulations and Controlling Regulatory Costs (E.O. 13771)

    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities and control regulatory 
costs. E.O. 13771, however, applies only to significant regulatory 
actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 
13771 does not apply to this rule.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more because it is the responsibility and goal for the Federal 
Government to provide comprehensive education programs and services for 
Indian Tribes and Alaska Natives.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, tribal or local 
government agencies, or geographic regions because this rule affects 
only the children served at BIE-funded schools.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises 
because this rule affects only the children served at BIE-funded 
schools.

E. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1501 et seq.) is not required.

F. Takings (E.O. 12630)

    Under the criteria in section 2 of E.O. 12630, this rule does not 
have any significant takings implications. This rule does not impose 
conditions or limitations on the use of any private property or 
otherwise have taking implications under Executive Order 12630 because 
this rule does not affect individual property rights protected by the 
Fifth Amendment or involve a compensable ``taking.'' A takings 
implication assessment is not required.

G. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. This rule does 
not substantially and directly affect the relationship between the 
Federal and State government. The Secretary of the Interior is 
responsible for managing BIE-funded schools and interacting with tribal 
governments or tribal organizations operating Tribally-controlled grant 
and contract schools. Because this rule does not alter that 
relationship, a federalism summary impact statement is not required.

H. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
writing to minimize litigation.
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

I. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and tribal sovereignty.
    Under the Department's consultation policy and the criteria in E.O. 
13175, we evaluated this rule and determined that it would have no 
tribal implications that would impose substantial direct compliance 
costs on Indian tribal governments.
    Also, under this consultation policy and Executive order criteria 
with Indian Tribes and other individual stakeholders, BIE added 
language recommended by the Committee indicating the Secretary must

[[Page 17020]]

periodically review and revise the requirements established pursuant to 
this part and consult with Tribes and other stakeholders on necessary 
changes. In addition the BIE will hold further consultations regarding 
the BIE's Agency Plan, which will provide opportunities for 
stakeholders to be involved in shaping the implementation of the BIE's 
requirements for standards, assessments, and an accountability system. 
The BIE and the Department of Education will also hold consultations 
regarding the memorandum of agreement between the Departments required 
in ESEA section 8204(a).

J. Paperwork Reduction Act

    This rule contains information collections requiring approval under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The 
Department is seeking approval for a new OMB Control Number.
    OMB Control Number: 1076-0191.
    Title: Standards, Assessments, and Accountability System Waiver.
    Brief Description of Collection: This information collection is 
necessary to implement the requirements of ESEA, as amended by ESSA. 
The ESEA requires all schools, including BIE-funded and operated 
schools, to ensure that all children have a fair, equal, and 
significant opportunity to obtain a high-quality education and reach, 
at a minimum, proficiency on challenging academic standards and aligned 
assessments. In order to accomplish these goals, the Secretary will 
develop or implement standards, assessments, and an accountability 
system requirements for BIE-funded schools. Tribal governing bodies and 
school boards are able to waive the Secretary's requirements, in part 
in or whole. However, such entities are required to submit a proposal 
for alternative requirements for approval by the Secretary and the 
Secretary of Education prior to implementation of such alternative 
requirements.
    Type of Review: Existing collection in use without OMB control 
number.
    Respondents: Indian Tribes and BIE-funded school boards.
    Number of Respondents: Two on average (each year).
    Number of Responses: Two on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: 500 hours.
    Estimated Total Annual Hour Burden: 1,000 hours.
    Estimated Total Non-Hour Cost: $0.

K. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. We are not required to 
provide a detailed statement under the National Environmental Policy 
Act of 1969 (NEPA) because this rule qualifies for categorical 
exclusion under 43 CFR 46.210(f) and (i) and the DOI Departmental 
Manual, part 516, section 15.4.D: (f)-(i). We have also determined that 
this rulemaking is not involved in any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA.

L. Effects on the Energy Supply (E.O. 13211)

    This rule would not be a significant energy action under the 
definition in Executive Order 13211, and therefore, would not require a 
Statement of Energy Effects.

List of Subjects in 25 CFR Part 30

    Elementary and secondary education, Grant programs-Indians, 
Indians-education, Schools.

    For the reasons set forth in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, revises 25 CFR part 30 to read as 
follows:

PART 30--STANDARDS, ASSESSMENTS, AND ACCOUNTABILITY SYSTEM

Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?
Subpart A--Standards, Assessments, and Accountability System 
Requirements
30.102 What does the Act require of the Secretary?
30.103 How will the Secretary implement Standards, Assessments and 
Accountability System requirements?
30.104 How will the Secretary implement requirements for standards?
30.105 How will the Secretary implement requirements for academic 
content assessments?
30.106 How will the Secretary provide for the inclusion of all 
students in assessments?
30.107 How will the Secretary include students with disabilities in 
assessments?
30.108 How will the Secretary provide for alternate assessments for 
students with the most significant cognitive disabilities?
30.109 How will the Secretary include English learners in academic 
content assessments?
30.110 How will the Secretary ensure BIE-funded schools will provide 
for annual assessments of English language proficiency for English 
learners?
30.111 How will the Secretary implement requirements for an 
accountability system?
Subpart B--Accountability, Waiver of Requirements, Technical 
Assistance, and Approval of Proposals for Alternative Requirements
30.112 May a tribal governing body or school board waive the 
Secretary's requirements for standards, assessments, and an 
accountability system?
30.113 How does a tribal governing body or school board waive the 
Secretary's requirements?
30.114 What should a tribal governing body or school board include 
in a proposal for alternative requirements?
30.115 May proposed alternative requirements use parts of the 
Secretary's requirements?
30.116 Will the Secretary provide technical assistance to tribal 
governing bodies or school boards seeking to develop alternative 
requirements?
30.117 What is the process for requesting technical assistance?
30.118 When should the tribal governing body or school board request 
technical assistance?
30.119 How does the Secretary review and approve alternative 
requirements?
Subpart C--Support and Improvement
30.120 How will the Secretary notify BIE-funded schools that they 
have been identified for school support and improvement activities?
30.121 How will the Secretary implement requirements for 
comprehensive support and improvement activities?
30.122 How will the Secretary implement requirements for targeted 
support and improvement activities?
30.123 How will the Secretary implement requirements to identify 
schools for additional targeted support?
30.124 How will the Secretary implement continued support for 
Bureau-funded schools and school improvement?
Subpart D--Responsibilities and Accountability
30.125 What is required for the Bureau to meet its reporting 
responsibilities?
30.126 What information collections have been approved?

    Authority: Pub. L. 114-94, 129 Stat. 1312, 20 U.S.C. 6311 et. 
seq.; 20 U.S.C. 7824(c).


Sec.  30.100  What is the purpose of this part?

    (a) This part establishes regulations regarding standards, 
assessments, and an accountability system at BIE-funded schools 
consistent with section 1111 of the Elementary and Secondary Education 
Act of 1965. The Act requires the Secretary to develop or implement 
requirements for standards, assessments, and an accountability system 
for BIE-funded schools.
    (b) Nothing in this part may be construed to affect, modify, or 
diminish the sovereign rights of Indian Tribes; statutory rights under 
law, including the right to use Native American languages as a medium 
of instruction as described in the Native American Languages Act,

[[Page 17021]]

Public Law 101-477; the Secretary's trust responsibility for Indian 
education; nor the trust responsibility of the United States to Indian 
Tribes or individual Indians. In carrying out the education mission of 
the Department, the BIE has an obligation to provide for a 
comprehensive multicultural and multilingual education program 
including the production and use of instructional materials, culturally 
appropriate methodologies and teaching and learning strategies that 
will reinforce, preserve, and maintain Indian and Alaska Native 
languages, cultures, and histories which school boards, Tribes and 
Alaska Native entities may utilize at their discretion.
    (c) In carrying out activities under this part, the Secretary will 
be guided by the policies stated in 25 CFR part 32.


Sec.  30.101  What definitions apply to terms in this part?

    Act means the Elementary and Secondary Education Act of 1965, as 
amended by the Every Student Succeeds Act, Public Law 114-95, enacted 
December 10, 2015.
    Agency Plan means a BIE document that will provide Indian Tribes, 
parents, and stakeholders with quality, transparent information about 
how standards, assessments, and an accountability system will be 
implemented at a BIE-funded school.
    BIE-funded school(s) means a school funded by the Bureau of Indian 
Education and includes Bureau-operated schools and tribally controlled 
schools.
    Bureau or BIE means the Bureau of Indian Education.
    Bureau-operated school means a school operated by the Bureau of 
Indian Education.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Education.
    English learner means an individual:
    (1) Who is aged three (3) through twenty-one (21);
    (2) Who is enrolled or preparing to enroll in an elementary school 
or secondary school;
    (3)(i) Who was not born in the United States or whose native 
language is a language other than English;
    (ii)(A) Who is a Native American or Alaska Native, or a native 
resident of the outlying areas; and
    (B) Who comes from an environment where a language other than 
English has had a significant impact on the individual's level of 
English language proficiency; or
    (iii) Who is migratory, whose native language is a language other 
than English, and who comes from an environment where a language other 
than English is dominant; and
    (4) Whose difficulties in speaking, reading, writing, or 
understanding the English language may be sufficient to deny the 
individual;
    (i) The ability to meet the challenging academic standards;
    (ii) The ability to successfully achieve in classrooms where the 
language of instruction is English; or
    (iii) The opportunity to participate fully in society.
    (5) This definition is not intended to affect the right to use 
Native American language as a medium of instruction.
    Foster care means 24-hour substitute care for children placed away 
from their parents and for whom the agency under title IV-E of the 
Social Security Act has placement and care responsibility. This 
includes, but is not limited to, placements in foster family homes, 
foster homes of relatives, group homes, emergency shelters, residential 
facilities, child care institutions, and pre-adoptive homes. A child is 
in foster care in accordance with this definition regardless of whether 
the foster care facility is licensed and payments are made by the 
State, tribal, or local agency for the care of the child, whether 
adoption subsidy payments are being made prior to the finalization of 
an adoption, or whether there is Federal matching of any payments that 
are made.
    Native American language means the historical, traditional 
languages spoken by members of federally recognized Indian Tribes, as 
defined in 25 U.S.C. 2021(20).
    Peer review means, for purposes of this part, the process through 
which an entity demonstrates the technical soundness of an assessment 
system, including its validity and reliability for the purposes for 
which the assessments are intended.
    Proposal for alternative requirements means a proposal submitted by 
a tribal governing body or school board for requirements, in whole or 
in part, alternative to the ones adopted by the Secretary for 
standards, assessments, or an accountability system at BIE-funded 
schools except that an alternative proposal for a Bureau-operated 
school does not include any actions that would affect BIE's authority 
over inherently Federal functions as defined in 25 U.S.C. 2021(12).
    Secretary means the Secretary of the Interior or a designated 
representative.
    School board means, with respect to waiver and submission of 
alternative proposals for a BIE-funded school, either an ``agency 
school board' as defined in 25 U.S.C. 2021(1), or a ``local school 
board'' as defined in 25 U.S.C. 2021(14).
    School year means the academic school year as described by a school 
in the BIE's student information system.
    Subgroup of students means:
    (1) Economically disadvantaged students;
    (2) Students from major racial and ethnic groups;
    (3) Children with disabilities; and
    (4) English learners.
    Technical assistance means with regard to:
    (1) Comprehensive or targeted support and improvement or additional 
targeted support, subject to the availability of appropriations, 
assistance from the BIE to address issues impacting a school's or one 
or more subgroups within a school's ability to meet the BIE's academic 
goals and indicators developed or implemented in accordance with this 
part, including assistance to extend technical capabilities and 
training opportunities;
    (2) Proposals for alternative requirements, technical assistance 
means, subject to the availability of appropriations, assistance from 
the BIE and the Department of Education in the development of 
alternative requirements for standards, assessments, and an 
accountability system in part or in whole, including assistance in 
understanding what options may be available to enhance the exercise of 
sovereignty in education and address the unique circumstances and needs 
of BIE-funded schools and the students served at such schools.
    (3) English language proficiency assessments and alternate English 
language proficiency assessments, assistance including training 
teachers on how to administer such assessments.
    Tribal consultation means consultation conducted in accordance with 
the tribal consultation policy of the Department of the Interior.
    Tribal governing body means with respect to waiver and submission 
of alternative proposals for:
    (1) Tribally controlled schools, the entity authorized under 
applicable tribal law to waive the Secretary's requirements and propose 
alternative requirements; and
    (2) A BIE-operated school, the recognized governing body of the 
Indian Tribe involved that represents at least ninety (90) percent of 
the students served by such school.
    Tribally controlled school means, for the purposes of this part, a 
school operated under a Public Law 93-638 contract or Public Law 100-
297 grant that is:

[[Page 17022]]

    (1) Operated by an Indian Tribe or a tribal organization, enrolling 
students in Kindergarten through grade twelve (12) of schools that may 
have varying structure, including a preschool;
    (2) Not a local education agency as defined in 25 U.S.C. 2511(5); 
and
    (3) Not directly administered by the Bureau of Indian Education.
    Waiver means the exercise of authority by a tribal governing body 
or school board for a BIE-funded school to elect to implement 
requirements, in part or in whole, alternative to the ones adopted by 
the Secretary pursuant to this part at schools that are under the 
tribal governing body's or school board's jurisdiction following 
approval of the proposal for alternative requirements by the Secretary 
and the Secretary of Education pursuant to section 8204 of the Act, 
except that a tribal governing body's decision to exercise waiver 
authority under this part takes priority over a school board decision 
to exercise waiver authority under this part.

Subpart A--Standards, Assessments, and Accountability System 
Requirements


Sec.  30.102  What does the Act require of the Secretary?

    (a) The Act requires the Secretary to define standards, 
assessments, and accountability system, consistent with section 1111 of 
the Act, for schools on a national, regional, or tribal basis, as 
appropriate, taking into account the unique circumstances and needs of 
the schools and the students served, using regulations developed 
through a negotiated rulemaking process.
    (b) If a tribal governing body or school board determines that the 
requirements described in paragraph (a) of this section are 
inappropriate, it may waive these requirements, in part or in whole, 
and propose alternative requirements for standards, assessments, and an 
accountability system that meets the requirements of section 1111 of 
the Act, taking into account the unique circumstances and needs of the 
school or schools and the students served by such schools.
    (c) The Secretary and the Secretary of Education will provide 
technical assistance, upon request, either directly or through a 
contract, to a tribal governing body or school board that seeks a 
waiver and alternative requirements described in paragraph (b) of this 
section.


Sec.  30.103  How will the Secretary implement Standards, Assessments, 
and Accountability System requirements?

    (a) The Secretary, through the Director, must describe requirements 
for standards, assessments, and an accountability system for use at 
BIE-funded schools in accordance with this part. The Director must 
periodically review and revise these requirements, as necessary, but 
review will occur not less often than every four (4) years beginning 
with the school year for which the requirements become effective.
    (b) The Director will develop an Agency Plan that will provide 
Indian Tribes, schools, parents, and other stakeholders with quality, 
transparent information about how the Act will be implemented at BIE-
funded schools, including the requirements that have been established 
for standards, assessments, and an accountability system for BIE-funded 
schools.
    (c) The Secretary will engage in meaningful consultation with 
Indian Tribes and Alaska Native Villages, schools, parents, and other 
stakeholders, when developing and revising requirements for standards, 
assessments, and an accountability system for BIE-funded schools.
    (d) The Secretary may voluntarily partner with States, or another 
Federal agency, in the development of challenging academic standards 
and assessments.


Sec.  30.104  How will the Secretary implement requirements for 
standards?

    (a) The Secretary will implement requirements for academic 
standards for BIE-funded schools by adopting:
    (1) Challenging academic content standards; and
    (2) Aligned academic achievement standards consisting of at least 
three levels of achievement defined in the Agency Plan.
    (b) Combined, both academic content standards and academic 
achievement standards are hereinafter collectively referred to as 
``challenging academic standards.''
    (c) The academic content standards will apply to all BIE-funded 
schools and the students served at those schools. Such academic content 
standards will include:
    (1) Mathematics;
    (2) Reading or Language Arts;
    (3) Science;
    (4) Tribal civics, as appropriations become available; and
    (5) Any other subject determined by the Secretary.
    (d) The academic content standards must be aligned to entrance 
requirements for credit-bearing coursework in higher education and 
relevant career and technical education standards.
    (e) The Secretary must, through a documented and validated 
standards-setting process, adopt alternate academic achievement 
standards for students with the most significant cognitive disabilities 
that:
    (1) Are aligned with the challenging academic content standards 
under paragraphs (a) and (b) of this section;
    (2) Promote access to the general education curriculum, consistent 
with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 
1400 et seq.);
    (3) Reflect professional judgment as to the highest possible 
standards achievable by the students;
    (4) Are designated in the individualized education program 
developed under section 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for 
each such student as the academic achievement standards that will be 
used for the student; and
    (5) Are aligned to ensure that a student who meets the alternate 
academic achievement standards is on track to pursue postsecondary 
education or competitive integrated employment, consistent with the 
purposes of the Rehabilitation Act of 1973, as amended by the Workforce 
Innovation and Opportunity Act, as in effect on July 22, 2014.
    (f) The Secretary will adopt English language proficiency standards 
that:
    (1) Are derived from the four (4) recognized domains of speaking, 
listening, reading, and writing;
    (2) Address the different proficiency levels of English learners; 
and
    (3) Are aligned with the challenging academic standards.


Sec.  30.105  How will the Secretary implement requirements for 
academic content assessments?

    (a) Academic assessments. The BIE will implement a set of high 
quality student academic assessments in mathematics, reading or 
language arts, and science. As appropriations become available, BIE 
will implement an assessment in tribal civics.
    (b) Requirements for academic assessments. The academic assessments 
must:
    (1) Except with respect to alternate assessments for students with 
the most significant cognitive disabilities, be:
    (i) The same academic assessments used to measure the achievement 
of all BIE-funded school students; and
    (ii) Administered to all BIE-funded school students, including the 
following highly-mobile student populations:
    (A) Students with status as a migratory child;
    (B) Students with status as a homeless child or youth;
    (C) Students with status as a child in foster care;

[[Page 17023]]

    (D) Students with status as a student with a parent who is a member 
of the armed forces on active duty or serves on full-time National 
Guard duty;
    (2) Be aligned with the BIE's challenging academic standards, and 
provide coherent and timely information about student attainment of 
such standards and whether the student is performing at the student's 
grade level;
    (3) Be used for purposes for which such assessments are valid and 
reliable, consistent with relevant, nationally recognized professional 
and technical testing standards; objectively measure academic 
achievement, knowledge, and skills; and use tests that do not evaluate 
or assess personal or family beliefs and attitudes, or publicly 
disclose personally identifiable information, except that this 
provision does not preclude the use of:
    (i) Constructed-response, short answer, or essay questions; or
    (ii) Items that require a student to analyze a passage of text or 
to express opinions;
    (4) Be of adequate technical quality for each purpose required 
under the Act and consistent with the requirements of this section, the 
evidence of which will be made public, including on the BIE website;
    (5) Be administered:
    (i) In the case of mathematics and reading or language arts:
    (A) In each of grades three (3) through eight (8); and
    (B) At least once in grades nine (9) through twelve (12);
    (ii) In the case of science, not less than one time during:
    (A) Grades three (3) through five (5);
    (B) Grades six (6) through nine (9); and
    (C) Grades ten (10) through twelve (12); and
    (iii) In the case of any other subject chosen by the BIE, at the 
discretion of the BIE;
    (6) Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills, such as critical thinking, reasoning, analysis, complex problem 
solving, effective communication, and understanding of challenging 
content, which may:
    (i) Include valid and reliable measures of student academic growth 
at all achievement levels to help ensure that the assessment results 
could be used to improve student instruction; and
    (ii) Be partially delivered in the form of portfolios, projects, or 
extended performance tasks;
    (7) At the BIE's discretion, be administered through:
    (i) A single summative assessment; or
    (ii) Multiple Bureau-wide interim assessments during the course of 
the academic year that result in a single summative score that provides 
valid, reliable, and transparent information on student achievement or 
growth;
    (8) Produce individual student interpretive, descriptive, and 
diagnostic reports, consistent with paragraph (b)(3) of this section, 
regarding achievement on such assessments that allow parents, teachers, 
principals, and other school leaders to understand and address the 
specific academic needs of students, and that are provided to parents, 
teachers, and school leaders, as soon as is practicable after the 
assessment is given, in an understandable and uniform format, and to 
the extent practicable, in a language that parents can understand;
    (9) Enable results to be disaggregated:
    (i) Within the Bureau and each BIE-funded school by:
    (A) Each major racial and ethnic group;
    (B) Economically disadvantaged students as compared to students who 
are not economically disadvantaged;
    (C) Children with disabilities as defined in section 602(3) of the 
IDEA compared to children without disabilities;
    (D) English proficiency status;
    (E) Gender;
    (F) Migrant status;
    (G) Status as a homeless child or youth as defined in section 
725(2) of title VII, subtitle B of the McKinney-Vento Homeless 
Assistance Act, as amended;
    (H) Status as a child in foster care; and
    (I) Status as a student with a parent who is a member of the armed 
forces on active duty or serves on full-time National Guard duty.
    (ii) Disaggregation is not required in the cases in which the 
number of students in a subgroup is insufficient to yield statistically 
reliable information or the results would reveal personally 
identifiable information about an individual student;
    (10) Enable itemized score analyses to be produced and reported, 
consistent with paragraph (b)(3) of this section, to BIE-funded 
schools, so that parents, teachers, principals, other school leaders, 
and administrators can interpret and address the specific academic 
needs of students as indicated by the students' achievement on 
assessment items; and
    (11) Be designed and developed:
    (i) To be valid and accessible for use by all students, including 
students with disabilities and English learners; and
    (ii) To the extent practicable, using the principles of universal 
design for learning. For the purposes of this section, ``universal 
design for learning'' means a scientifically valid framework for 
guiding educational practice that:
    (A) Provides flexibility in the ways information is presented, in 
the ways students respond or demonstrate knowledge and skills, and in 
the ways students are engaged; and
    (B) Reduces barriers in instruction, provides appropriate 
accommodations, supports, and challenges, and maintains high 
achievement expectations for all students, including students with 
disabilities and English learners.
    (c) Exception for advanced mathematics in middle school. The BIE 
will determine the use of this exemption in the Agency Plan.
    (d) Computer adaptive assessments. (1) BIE retains the right to 
develop and administer computer adaptive assessments as the assessments 
described in this section, provided the computer adaptive assessments 
meet the requirements of this section, except that:
    (i) The requirement that the same academic assessments must be used 
to measure the achievement of all BIE-funded school students and that 
the assessments must be administered to all BIE-funded school students 
may not be interpreted to require that all students taking the computer 
adaptive assessment be administered the same assessment items; and
    (ii) Such assessment:
    (A) Must measure, at a minimum, each student's academic proficiency 
based on the challenging academic standards for the student's grade 
level and growth toward such standards; and
    (B) May measure the student's level of academic proficiency and 
growth using items above or below the student's grade level, including 
for use as part of the accountability system.
    (2) In developing and administering computer adaptive assessments 
for students with the most significant cognitive disabilities and 
English learners:
    (i) The BIE will ensure that the computer adaptive assessments for 
students with the most significant cognitive disabilities:
    (A) Assess a student's academic achievement based on the 
challenging academic content standards for the grade in which the 
student is enrolled;
    (B) Meet the requirements of this section and Sec. Sec.  30.106 
through 30.110, including Sec.  30.108, except the assessments are not 
required to meet the requirements of paragraph (d)(1)(ii) of this 
section; and
    (C) Assess the student's academic achievement to measure, in the 
subject being assessed, whether the student is

[[Page 17024]]

performing at the student's grade level; and
    (ii) The BIE may provide for the use of computer adaptive 
assessments that:
    (A) Meet the requirements Sec. Sec.  30.106 through 30.110 except 
the assessments are not required to meet the requirements of paragraph 
(d)(1)(ii) of this section; and
    (B) Assess the student's English language proficiency, which may 
include growth towards such proficiency, in order to measure the 
student's acquisition of English.
    (e) Peer review and future guidance on academic assessments. (1) 
The BIE assessments required by these regulations must undergo peer 
review with the exception of tribal civics and non-content Native 
American language academic assessments.
    (2) BIE will develop guidance on the use of academic assessments in 
a Native American language for purposes of compliance with these 
regulatory requirements, including evidence of technical validity and 
reliability, in consultation with the Department of Education, Tribes, 
and other stakeholders.
    (f) Rule of construction on parental rights. Nothing in this 
section may be construed as preempting tribal law at a tribally 
controlled school regarding the decision of a parent to not have the 
parent's child participate in the academic assessments under this 
paragraph (f).
    (g) Limitation on assessment time. The Secretary may set a target 
limit on the aggregate amount of time devoted to the administration of 
assessments for each grade, expressed as a percentage of annual 
instructional hours.
    (h) Students in Native American language schools or programs. The 
BIE is not required to assess, using an assessment written in English, 
student achievement in meeting the BIE's challenging State academic 
standards in reading/language arts, mathematics, or science for a 
student who is enrolled in a school or program that provides 
instruction primarily in a Native American language if:
    (1) The program or school provides an assessment in the Native 
American language to all students in the program or school and:
    (i) Submits evidence to the BIE according to BIE guidelines 
developed under paragraph (e)(2) of this section regarding such 
assessment's technical validity and reliability for the purposes for 
which it is intended; and
    (ii) BIE submits this evidence to Department of Education for 
approval; and
    (2) For an English learner the BIE continues to assess the English 
language proficiency of such English learner, using the annual English 
language proficiency assessment required under Sec.  30.110, and 
provides appropriate services to enable him or her to attain 
proficiency in English.


Sec.  30.106  How will the Secretary provide for the inclusion of all 
students in assessments?

    The Secretary will provide assessment instruments that allow for:
    (a) The participation of all students, generally;
    (b) The participation of students with disabilities, as detailed in 
Sec. Sec.  30.107 and 30.108; and
    (c) The participation of English learners, as detailed in Sec.  
30.109.


Sec.  30.107  How will the Secretary include students with disabilities 
in assessments?

    (a) The BIE and BIE-funded schools must ensure that students with 
disabilities have the appropriate accommodations, such as 
interoperability with, and ability to use, assistive technology, for 
students with disabilities, including students with the most 
significant cognitive disabilities, necessary to measure the academic 
achievement of such children relative to the BIE's challenging academic 
standards or alternate academic achievement standards described in 
Sec.  30.104(d) and (e).
    (b) The Secretary must include students with disabilities in all 
assessments, with appropriate accommodations. For purposes of this 
section, students with disabilities, collectively, are:
    (1) All children with disabilities as defined under section 602(3) 
of the IDEA;
    (2) Students with the most significant cognitive disabilities who 
are identified from among the students in paragraph (a) of this 
section; and
    (3) Students with disabilities covered under other acts, including:
    (i) Section 504 of the Rehabilitation Act of 1973, as amended; and
    (ii) Title II of the Americans with Disabilities Act (ADA), as 
amended.
    (c) Appropriate accommodations for those students described in 
paragraph (b) of this section will be determined by:
    (1) For each student under paragraphs (b)(1) and (2) of this 
section, the student's IEP team;
    (2) For each student under paragraph (b)(3)(i) of this section, the 
student's placement team; or
    (3) For each student under paragraph (b)(3)(ii) of this section, 
the individual or team designated by the school to make these 
decisions.
    (d)(1) Except as provided in paragraph (d)(2) of this section, a 
student with a disability must be assessed with an assessment aligned 
with the BIE's challenging academic standards for the grade in which 
the student is enrolled.
    (2) A student with the most significant cognitive disabilities may 
be assessed with:
    (i) The general assessment under Sec.  30.106(b); or
    (ii) The alternate assessment under Sec.  30.108 aligned with the 
BIE's challenging academic content standards for the grade in which the 
student is enrolled and the BIE's alternate academic achievement 
standards.
    (e) The BIE and school must ensure that general and special 
education teachers, paraprofessionals, teachers of English learners, 
specialized instructional support personnel, and other appropriate 
staff receive necessary training to administer assessments and know how 
to administer assessments, including, as necessary, alternate 
assessments, and know how to make use of appropriate accommodations 
during assessment for all students with disabilities, consistent with 
section 1111(b)(2)(B)(vii)(III) of the Act.
    (f) The BIE and school must ensure that the use of appropriate 
accommodations under paragraph (c) of this section does not deny a 
student with a disability:
    (1) The opportunity to participate in the assessment; and
    (2) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities.


Sec.  30.108  How will the Secretary provide for alternate assessments 
for students with the most significant cognitive disabilities?

    (a) Alternate assessments aligned with alternate academic 
achievement standards. The BIE will provide for alternate assessments 
aligned with the challenging academic content standards for the grade 
in which the student is enrolled and alternate academic achievement 
standards described in Sec.  30.104(d) and (e) for students with the 
most significant cognitive disabilities. The BIE must:
    (1) Consistent with paragraph (b) of this section, ensure that, for 
each subject, the total number of students assessed in the subject 
using the alternate assessments does not exceed one (1) percent of the 
total number of all students in all BIE-funded schools who are assessed 
in the subject;
    (2) With regard to the percentage of students assessed under this 
paragraph (a):
    (i) Not prohibit a BIE-funded school from assessing more than one 
(1)

[[Page 17025]]

percent of its assessed students in any subject for which assessments 
are administered with an alternate assessment aligned with alternate 
academic achievement standards;
    (ii) Require that the BIE-funded school submit by October 1 
information into the BIE's student information system regarding what 
assessment the student is to take and which must be consistent with the 
individualized education program (IEP);
    (iii) Provide appropriate oversight of a BIE-funded school that is 
required to submit information to the BIE; and
    (iv) Make the information submitted by a BIE-funded school under 
paragraph (a)(2)(ii) of this section publicly available, provided that 
such information does not reveal personally identifiable information 
about an individual student;
    (3) With regard to IEP teams:
    (i) Establish clear and appropriate guidelines, consistent with 
section 612(a)(16)(C) of the IDEA, and provide technical assistance as 
requested in writing, and monitor implementation of clear and 
appropriate guidelines for IEP teams to apply in determining, on a 
case-by-case basis, which students with the most significant cognitive 
disabilities will be assessed based on alternate academic achievement 
standards. Such guidelines must include a BIE definition of ``students 
with the most significant cognitive disabilities'' that addresses 
factors related to cognitive functioning and adaptive behavior, such 
that:
    (A) The identification of a student as having a particular 
disability as defined in the IDEA or as an English learner does not 
determine whether a student is a student with the most significant 
cognitive disabilities;
    (B) A student with the most significant cognitive disabilities is 
not identified solely on the basis of the student's previous low 
academic achievement, or the student's previous need for accommodations 
to participate in general BIE assessments; and
    (C) A student is identified as having the most significant 
cognitive disabilities because the student requires extensive, direct 
individualized instruction and substantial supports to achieve 
measurable gains on the BIE's challenging academic content standards 
for the grade in which the student is enrolled; and
    (ii) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of BIE and BIE-funded school policies on a student's 
education resulting from taking an alternate assessment aligned with 
alternate academic achievement standards, such as how participation in 
such assessments may delay or otherwise affect the student from 
completing the requirements for a regular high school diploma;
    (4) Ensure that the parents of such students are clearly informed, 
as part of the process for developing the individualized education 
program (as defined in section 614(d)(1)(A) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1414(d)(1)(A))):
    (i) That their child's academic achievement will be measured based 
on the alternate academic achievement standards; and
    (ii) How participation in the assessments may delay or otherwise 
affect the student from completing the requirements for a regular high 
school diploma;
    (5) Promote, consistent with the IDEA (20 U.S.C. 1400 et seq.), the 
involvement and progress of students with the most significant 
cognitive disabilities in the general education curriculum;
    (6) Describe the steps the Bureau has taken to incorporate 
universal design for learning, to the extent feasible, in alternate 
assessments;
    (7) Describe that general and special education teachers, and other 
appropriate staff:
    (i) Know how to administer the alternate assessments; and
    (ii) Make appropriate use of accommodations for students with 
disabilities on all assessments required under this paragraph (a);
    (8) Develop, disseminate information on, and promote the use of 
appropriate accommodations to increase the number of students with 
significant cognitive disabilities:
    (i) Participating in academic instruction and assessments for the 
grade level in which the student is enrolled; and
    (ii) Who are tested based on the BIE's challenging academic 
standards for the grade level in which the student is enrolled; and
    (9) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment based on alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma.
    (b) Responsibility under IDEA. Subject to the authority and 
requirements for the IEP team for a child with a disability under 
section 614(d)(1)(A)(i)(VI)(bb) of the Individuals with Disabilities 
Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VI)(bb)), such team, 
consistent with the guidelines established by the BIE and required 
under section 612(a)(16)(C) of such Act (20 U.S.C. 1412(a)(16)(C)) and 
paragraph (a)(1) of this section, will determine when a child with a 
significant cognitive disability may participate in an alternate 
assessment aligned with the alternate academic achievement standards.


Sec.  30.109  How will the Secretary include English learners in 
academic content assessments?

    (a) English learners. English learners must be:
    (1) Assessed in a valid and reliable manner; and
    (2) Provided appropriate accommodations on assessments administered 
including, to the extent practicable, assessments in the language and 
form most likely to yield accurate data on what the students know and 
can do in academic content areas, until the students have achieved 
English language proficiency, consistent with standardized BIE-
determined exit procedures.
    (b) Language or form of assessment. Notwithstanding paragraph 
(a)(2) of this section, BIE-funded schools must provide for assessments 
(using tests in English) of reading or language arts of any student who 
has attended school in the United States for three (3) or more 
consecutive school years, except that if the BIE-funded school 
determines, on a case-by-case individual basis, that academic 
assessments in another language or form would likely yield more 
accurate and reliable information on what the student knows and can do, 
the BIE-funded school may make a determination to assess the student in 
the appropriate language other than English for a period that does not 
exceed two (2) additional consecutive years, provided that the student 
has not yet reached a level of English language proficiency sufficient 
to yield valid and reliable information on what the student knows and 
can do on tests (written in English) of reading or language arts. This 
requirement does not permit either the BIE or BIE-funded schools to 
exempt English learners from participating in the BIE's assessment 
system.
    (c) BIE responsibilities. The BIE must:
    (1) Disseminate information and resources regarding English 
learners to, at a minimum, BIE-funded schools, and parents;
    (2) Promote the use of accommodations for English learners to 
ensure that all English learners are able to participate in academic 
instruction and assessments; and

[[Page 17026]]

    (3) Provide technical assistance when requested in writing.
    (d) Exception for recently arrived English learners. With respect 
to recently arrived English learners who have been enrolled in a school 
in one of the 50 States in the United States or the District of 
Columbia for less than twelve (12) months, the BIE may choose to:
    (1) Exclude:
    (i) The English learner from one administration of the reading or 
language arts assessment required under Sec.  30.105; and
    (ii) The English learner's results on any of the assessments 
required under Sec.  30.105(b)(5)(i) or Sec.  30.110 for the first year 
of the English learner's enrollment in the school for the purposes of 
the BIE-determined accountability system under Sec.  30.111; or
    (2) Assess, and report the performance of:
    (i) The English learner on the reading or language arts and 
mathematics assessments required under Sec.  30.105(b)(5)(i) in each 
year of the student's enrollment in such a school; and
    (ii) For the purposes of the BIE-determined accountability system:
    (A) For the first year of the student's enrollment in the school, 
exclude the results on the assessments described in paragraphs 
(d)(1)(i) and (ii) of this section;
    (B) Include a measure of student growth on the assessments 
described in paragraphs (d)(1)(i) and (ii) of this section in the 
second year of the student's enrollment in the school; and
    (C) Include proficiency on the assessments in reading or language 
arts and mathematics described in this paragraph (d) in the third year 
of the student's enrollment in such a school, and each succeeding year 
of enrollment.
    (e) English learner subgroup. With respect to a student previously 
identified as an English learner and for not more than four (4) years 
after the student ceases to be identified as an English learner, the 
BIE may include the results of the student's academic content 
assessments within the English learner subgroup of the subgroups of 
students as defined in Sec.  30.101 for the purposes of the BIE-
determined accountability system.


Sec.  30.110  How will the Secretary ensure BIE-funded schools will 
provide for annual assessments of English language proficiency for 
English learners?

    (a) The BIE will ensure that BIE-funded schools will administer a 
valid and reliable annual assessment of English proficiency to all 
English learners in the schools served by the BIE.
    (b) The BIE will require BIE-funded schools to use the assessment 
to assess annually the English language proficiency, including reading, 
writing, speaking, and listening skills, of all English learners in 
kindergarten through grade twelve (12).
    (c) The English language proficiency assessment must be aligned 
with the BIE's English language proficiency standards described in 
Sec.  30.104(f).
    (d) The assessment will be implemented, developed, and used 
consistent with the requirements of this section.
    (e) The assessment will provide coherent and timely information 
about each student's attainment of the BIE's English language 
proficiency standards to parents.
    (f) If an English learner has a disability that precludes 
assessment of the student in one or more domains of the English 
language proficiency assessment such that there are no appropriate 
accommodations for the affected domain(s) (e.g., a non-verbal English 
learner who because of an identified disability cannot take the 
speaking portion of the assessment), as determined, on an 
individualized basis, by the student's IEP team, 504 team, or by the 
individual or team designated by the BIE-funded school to make these 
decisions under title II of the ADA, then the BIE must assess the 
student's English language proficiency based on the remaining domains 
in which it is possible to assess the student.
    (g) The BIE must provide for an alternate English language 
proficiency assessment for English learners with the most significant 
cognitive disabilities who cannot participate in the assessment under 
this paragraph (g) even with appropriate accommodations.
    (h) BIE will provide technical assistance, including training 
teachers on how to administer assessments, in regard to English 
language proficiency assessments and alternate English language 
proficiency assessments to BIE-funded schools as requested in writing.


Sec.  30.111  How will the Secretary implement requirements for an 
accountability system?

    (a) The Secretary will define accountability system for BIE-funded 
schools consistent with this section and subpart C of this part, 
including provisions for a single Bureau-wide accountability system and 
system of support and improvement activities, taking into account the 
unique circumstances and needs of BIE-funded schools and the students 
served by BIE-funded schools.
    (b) To improve student academic achievement and school success 
among all elementary and secondary schools within the BIE-funded school 
system, the Secretary will develop and implement a single, Bureau-wide 
accountability system that:
    (1) Is based on the Bureau's challenging academic standards and 
academic assessments;
    (2) Is informed by ambitious long-term goals and measurements of 
interim progress;
    (3) Includes all the accountability indicators described paragraph 
(e) of this section;
    (4) Takes into account the achievement of all elementary and 
secondary school students within the BIE-funded school system;
    (5) Is the same accountability system used to annually, 
meaningfully differentiate all schools within the BIE-funded school 
system and the same accountability system used to identify schools for 
comprehensive and targeted support and improvement; and
    (6) Includes the process that the Bureau will use to ensure 
effective development and implementation of school support and 
improvement plans, including evidence-based interventions, to hold all 
schools within the BIE-funded school system accountable for student 
academic achievement and school success.
    (c) The inclusion of science and tribal civics will be phased into 
the Secretary's requirements for accountability system starting as a 
school quality or student success indicator and their continued use in 
such manner will be revisited as the accountability system is 
implemented.
    (d) For all students and separately for each subgroup of students 
within the BIE-funded school system, the BIE will establish long-term 
goals and measurements of interim progress that will include, at a 
minimum, improved academic achievement, as measured by proficiency on 
the Bureau's annual assessments in mathematics and reading or language 
arts under Sec.  30.105(b)(5)(i), and high school graduation rates, 
including the four (4)-year adjusted cohort graduation rate, or at 
BIE's discretion one or more extended year graduation cohorts, and that 
will:
    (1) Use the same multi-year length of time for all students and for 
each subgroup of students within the BIE-funded school system to meet 
the goals; and
    (2) Take into account, for subgroups of students who are behind on 
the measurements of academic achievement

[[Page 17027]]

and high school graduations rates, the improvement necessary to make 
significant progress in closing Bureau-wide proficiency and graduation 
rate gaps.
    (e) For all students and separately for each subgroup of students 
within the BIE-funded school system, the BIE will include a long-term 
goal and measurements of interim progress for increases in the 
percentage of English learner students making progress in achieving 
English language proficiency as defined by the Secretary and measured 
by the assessments under Sec.  30.110 within a timeline determined by 
the Bureau.
    (f) For all students and separately for each subgroup of students 
the Bureau will establish and annually measure the following 
accountability indicators:
    (1) For all schools, based upon the long-term goals established 
under paragraphs (b)(2) and (d) of this section, academic achievement:
    (i) As measured by proficiency on the annual assessments of 
mathematics and reading or language arts described in Sec.  
30.105(b)(5)(i); and
    (ii) At the BIE's discretion, for each high school, growth, as 
measured by such annual assessments.
    (2) For elementary and secondary schools that are not high schools:
    (i) A measure of student growth, if determined to be appropriate by 
the BIE; or
    (ii) Another valid and reliable Bureau-wide academic indicator that 
allows for meaningful differentiation in school performance.
    (3) For high schools, based upon the long-term goals established 
under paragraphs (b)(2) and (d) of this section:
    (i) The four (4)-year adjusted cohort graduation rate; and
    (ii) At the BIE's discretion, the extended-year adjusted graduation 
cohort rate, as defined in paragraph (j) of this section.
    (4) For all schools, progress in achieving English language 
proficiency, as defined by the BIE and measured by the assessments of 
English language proficiency described in Sec.  30.110, within a BIE-
determined timeline for all English learners:
    (i) In each of grades three (3) through eight (8); and
    (ii) In the high school grade for which such English learners are 
otherwise assessed in mathematics and reading or language arts.
    (5) For all schools, not less than one indicator of school quality 
or student success that:
    (i) Allows for meaningful differentiation in school performance;
    (ii) Is valid, reliable, comparable, and Bureau-wide (with the same 
indicator or indicators used for each grade span, as such term is 
determined by the BIE); and
    (iii) May include one or more of the following measures:
    (A) Student or Educator engagement;
    (B) Chronic absenteeism;
    (C) Student access to and completion of advanced coursework;
    (D) Postsecondary readiness;
    (E) School climate and safety; and
    (F) Any other indicator the BIE chooses that meets the requirements 
of this section.
    (g) The BIE will establish a system for meaningfully 
differentiating, annually, all schools that will:
    (1) Be based on all indicators described paragraph (f) of this 
section for all students and for each subgroup of students; and
    (2) With respect to paragraphs (f)(1) through (4) of this section, 
afford:
    (i) Substantial weight to each such indicator;
    (ii) In the aggregate, much greater weight than is afforded to the 
indicator or indicators utilized by the BIE and described in paragraph 
(f)(5) of this section, in the aggregate; and
    (iii) Include differentiation of any such school in which any 
subgroup of students is consistently underperforming, as determined by 
the BIE, based on all indicators described in paragraph (f) of this 
section.
    (h) Based on the system of meaningful differentiation described in 
paragraph (g) of this section, the BIE will establish a methodology to 
identify:
    (1) Beginning with the first full school year following April 27, 
2020, and at least once every three (3) years thereafter, one (1) BIE-
wide category of schools for comprehensive support and improvement, 
which will include:
    (i) Not less than the lowest-performing five (5) percent of all 
schools receiving Title I funding;
    (ii) All high schools failing to graduate one third (\1/3\) or more 
of their students; and
    (iii) All schools identified for additional targeted support and 
improvement that receive ESEA Title I funding and do not meet exit 
criteria as provided in Sec.  30.124(a)(2).
    (2) The BIE will provide technical assistance to all schools 
identified for comprehensive support and improvement, targeted support 
and improvement, or additional targeted support.
    (i) The Bureau's accountability system will annually measure the 
achievement of at least ninety-five (95) percent of all students, and 
ninety-five (95) percent of each subgroup of students, who are enrolled 
in a school within the BIE-funded school system on the Bureau's 
assessments. The denominator for the purpose of measuring, calculating, 
and reporting on the academic achievement indicator will be the greater 
of:
    (1) Ninety-five (95) percent of all students, or ninety-five (95) 
percent of each subgroup of students; or
    (2) The number of students participating in the assessments.
    (j) The performance of students that have not attended the same 
BIE-funded school for at least half (\1/2\) of a school year will not 
be included in the academic achievement, other academic, progress in 
achieving English language proficiency, or school quality or student 
success indicators for that school year, but will be used for the 
purpose of reporting on the Bureau and school report cards for that 
school year.
    (k) Extended-year adjusted cohort graduation rate means the 
fraction--
    (1) The denominator of which consists of the number of students who 
form the original cohort of entering first-time students in grade nine 
(9) enrolled in the high school, adjusted by--
    (i) Adding the students who joined that cohort, after the date of 
the determination of the original cohort; and
    (ii) Subtracting only those students who left that cohort, after 
the date of the determination of the original cohort, as described in 
paragraph (l) of this section; and
    (2) The numerator of which--
    (i) Consists of the sum of--
    (A) The number of students in the cohort, as adjusted under 
paragraph (k)(1) of this section, who earned a regular high school 
diploma before, during, or at the conclusion of--
    (1) One or more additional years beyond the fourth year of high 
school; or
    (2) A summer session immediately following the additional year of 
high school; and
    (B) All students with the most significant cognitive disabilities 
in the cohort, as adjusted under paragraph (k)(1) of this section, 
assessed using the alternate assessment aligned to alternate academic 
achievement standards under Sec.  30.108 and awarded an alternate 
diploma that is--
    (1) Standards-based;
    (2) Aligned with the requirements for the regular high school 
diploma; and
    (3) Obtained within the time period for which the BIE ensures the 
availability of a free appropriate public education under 20 U.S.C. 
1412(a)(1); and
    (ii) Does not include any student awarded a recognized equivalent 
of a diploma, such as a general equivalency

[[Page 17028]]

diploma, certificate of completion, certificate of attendance, or 
similar lesser credential.
    (l) To remove a student from a cohort, a school or local 
educational agency must require documentation, or obtain documentation 
from the BIE, to confirm that the student has transferred out, 
immigrated to another country, transferred to a prison or juvenile 
facility, or is deceased.
    (m) For purposes of this paragraph (m), the term ``transferred 
out'' has the meaning given the term in ESEA section 8101(25)(C).
    (n) For those high schools that start after grade nine (9), the 
original cohort will be calculated for the earliest high school grade 
students attend no later than the date by which student membership data 
is collected annually by the BIE.

Subpart B--Accountability, Waiver of Requirements, Technical 
Assistance, and Approval of Proposals for Alternative Requirements


Sec.  30.112  May a tribal governing body or school board waive the 
Secretary's requirements for standards, assessments, and an 
accountability system?

    Yes. A tribal governing body or school board may waive the 
Secretary's requirements for standards, assessments, and an 
accountability system in part or in whole, and the tribal governing 
body or school board's alternative requirements will apply if they meet 
the requirements of section 1111, taking into account the unique 
circumstances and needs of the applicable school or schools and the 
students served by such school or schools, and are approved by the 
Secretary and the Secretary of Education. If the Secretary and the 
Secretary of Education do not approve the tribal governing body or 
school board's proposal for alternative requirements, the Secretary's 
requirements under this part continue to apply. Depending on the nature 
and content of such proposals for alternative requirements, and subject 
to the availability of appropriations, alternative requirements will 
generally be effective in the school year following the school year 
they are approved. Where a tribal governing body or school board 
proposes to use existing State requirements, approval of the use of 
such requirements is dependent upon the agreement of the applicable 
State.


Sec.  30.113  How does a tribal governing body or school board waive 
the Secretary's requirements?

    (a) A tribal governing body or school board may waive the 
Secretary's requirements for standards, assessments, and an 
accountability system, in part or in whole.
    (b) The tribal governing body or school board must notify the 
Secretary and the Secretary of Education in writing of the decision to 
waive the Secretary's requirements in part or in whole.
    (c) Within sixty (60) days of the decision to waive the Secretary's 
requirements in part or in whole, the tribal governing body or school 
board must submit to the Secretary for review and, in coordination with 
the Secretary of Education, approval, a proposal for alternative 
requirements that are consistent with section 1111 of the Act, taking 
into account the unique circumstances and needs of the school or 
schools and the students served. The Secretary encourages a tribal 
governing body or school board to request and receive technical 
assistance well in advance of submission of a plan to the Secretary for 
review. The tribal governing body or school board must continue to 
follow the Secretary's requirements for standards, assessments, and an 
accountability system until a proposal for alternative requirements has 
been approved and until alternative requirements become effective.
    (d) A tribal governing body or school board may request in writing 
an extension of the sixty (60) day deadline for the provision of 
technical assistance.
    (e) A tribal governing body or school board must use this process 
anytime a tribal governing body or school board proposes alternative 
requirements for standards, assessments, and an accountability system, 
or proposes changes to approved alternative requirements.
    (f) The Secretary will work with the Secretary of Education to 
develop and make available templates for proposals for alternative 
requirements that tribal governing bodies and school boards may use to 
assist in the development of such proposals for alternative 
requirements.


Sec.  30.114  What should a tribal governing body or school board 
include in a proposal for alternative requirements?

    Proposals for alternative requirements must include an explanation 
of how the alternative proposal meets the requirements of section 1111 
of the Act, taking into consideration the unique circumstances and 
needs of BIE-funded schools and the students served at such schools.


Sec.  30.115  May proposed alternative requirements use parts of the 
Secretary's requirements?

    Yes, a tribal governing body or school board may use the 
Secretary's requirements in part or in whole. Alternative proposals 
must clearly identify any retained portions of the Secretary's 
requirements.


Sec.  30.116  Will the Secretary provide technical assistance to tribal 
governing bodies or school boards seeking to develop alternative 
requirements?

    The Secretary and the Secretary of Education are required by 
statute to provide technical assistance, upon request, either directly 
or through contract, to a tribal governing body or a school board that 
seeks to develop alternative requirements. A tribal governing body or 
school board seeking such assistance must submit a request in writing 
to the Director. The Secretary will provide such technical assistance 
on an ongoing and timely basis.


Sec.  30.117  What is the process for requesting technical assistance?

    (a) Requests for technical assistance must be in writing from a 
tribal governing body or school board to the Director of BIE and the 
Department of Education's Assistant Secretary of the Office of 
Elementary and Secondary Education.
    (b) The Director, or designee, will acknowledge receipt of a 
request for technical assistance.
    (c) No later than thirty (30) days after receiving the original 
request, the Director will identify a point-of-contact and begin the 
process of providing technical assistance. The Director and requesting 
tribal governing body or school board will work together to identify 
the form, substance, and timeline for the assistance.


Sec.  30.118  When should the tribal governing body or school board 
request technical assistance?

    A tribal governing body or school board may request technical 
assistance in writing at any time. A tribal governing body or school 
board is welcomed and encouraged to request technical assistance before 
formally notifying the Secretary of its intention to waive the 
requirements established by the Secretary in order to maximize the time 
available for technical assistance.


Sec.  30.119  How does the Secretary review and approve alternative 
requirements?

    (a) The Secretary and the Secretary of Education will jointly 
approve plans for alternative requirements for standards, assessments, 
and an accountability system or determine that the proposed

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alternative requirements do not meet the requirements of section 1111 
of the Act.
    (1) The Secretary will consult with the Secretary of Education 
through the review of a proposal for alternative requirements.
    (2) Upon receipt of a proposal for alternative requirements for 
standards, assessments, and an accountability system, in part or in 
whole, the Secretary will begin coordination with the Secretary of 
Education on review and approval of the proposal.
    (3) The Secretary will provide a status update regarding the 
processing of the proposal within 120 days of receipt of the proposal 
and every thirty (30) days thereafter to discuss the stage of the 
review process.
    (b) If the Secretary and the Secretary of Education approve a 
proposal for alternative requirements, the Secretary will:
    (1) Promptly notify the tribal governing body or school board; and
    (2) Indicate the date for which the alternative proposal will be 
effective.
    (c) If a proposal for alternative requirements is not approved, the 
tribal governing body or school board will be notified that:
    (1) The proposal has not been approved; and
    (2) The reasons why the alternative proposal was not approved.
    (d) If a proposal for alternative requirements is not approved, the 
Secretary will provide technical assistance to the tribal governing 
body or school board to help to overcome the reasons why the 
alternative proposal was not approved.
    (e) If a proposal for alternative requirements is not approved, or 
is not moving forward, then Tribes may individually request formal 
consultation with the Secretary and Secretary of Education.

Subpart C--Support and Improvement


Sec.  30.120  How will the Secretary notify BIE-funded schools that 
they have been identified for school support and improvement 
activities?

    The Secretary will notify each BIE-funded school that has been 
identified for comprehensive support and improvement as described in 
Sec.  30.111(h).


Sec.  30.121  How will the Secretary implement requirements for 
comprehensive support and improvement activities?

    (a) Once notified that it has been identified for comprehensive 
support and improvement, each BIE-funded school is required to develop 
and implement, in partnership with stakeholders (including principals 
and other school leaders, teachers, and parents), a comprehensive 
support and improvement plan to improve student outcomes that:
    (1) Is informed by all indicators described in Sec.  30.111(f), 
including student performance against BIE-determined long-term goals 
described in Sec.  30.111(d);
    (2) Includes evidence-based interventions;
    (3) Is based on a school-level needs assessment;
    (4) Identifies resource inequities, which may include a review of 
school-level budgeting, to be addressed through implementation of such 
comprehensive support and improvement plan;
    (5) Is approved by the school and the BIE; and
    (6) Upon approval and implementation, is monitored and periodically 
reviewed by the BIE.
    (b) In regard to high schools that have been identified as having 
failed to graduate one-third or more of their students, the BIE may:
    (1) Permit differentiated improvement activities that use evidence-
based interventions in the case of a school that predominantly serves 
students:
    (i) Returning to education after having exited secondary school 
without a regular high school diploma; or
    (ii) Who, based on their grade or age, are significantly off track 
to accumulate sufficient academic credits to meet high school 
graduation requirements; and
    (2) In the case of a school that has a total enrollment of fewer 
than 100 students, permit the BIE-funded school to forego 
implementation of improvement activities.


Sec.  30.122  How will the Secretary implement requirements for 
targeted support and improvement activities?

    (a) Using the system of annual meaningful differentiation of 
schools described in Sec.  30.111(b)(5) and (f), the BIE will notify 
each BIE-funded school in which any subgroup of students is 
consistently underperforming in accordance with Sec.  
30.111(g)(2)(iii).
    (b) Each school that has been notified must develop and implement, 
in partnership with stakeholders (including principals and other school 
leaders, teachers, and parents), a school-level targeted support and 
improvement plan to improve student outcomes based on the BIE's 
indicators for each subgroup of students that was the subject of such 
notification that:
    (1) Is informed by all indicators described in Sec.  30.111(f), 
including performance against long-term goals described in Sec.  
30.111(d);
    (2) Includes evidence-based interventions;
    (3) Is approved by the BIE prior to implementation of such plan;
    (4) Is monitored by the BIE, upon submission and implementation; 
and
    (5) Results in additional action following unsuccessful 
implementation of such plan after a number of years determined by the 
BIE.


Sec.  30.123  How will the Secretary implement requirements to identify 
schools for additional targeted support?

    (a) The BIE will identify for additional support and improvement 
each school with one (1) or more subgroups that is performing as poorly 
as the lowest-performing five (5) percent of all Title I schools 
identified for comprehensive support and improvement in the BIE system 
using the BIE's system of annual meaningful differentiation of schools 
described in Sec.  30.111(g).
    (b) Each school identified for additional targeted support and 
improvement must develop and implement a school-level targeted support 
and improvement plan and identify resource inequities (which may 
include a review of BIE-funded school level budgeting), to be addressed 
through implementation of the plan.


Sec.  30.124  How will the Secretary implement continued support for 
Bureau-funded schools and school improvement?

    (a) The Secretary will establish exit criteria for:
    (1) Schools identified for comprehensive support and improvement, 
which, if not satisfied within a BIE-determined number of years (not to 
exceed four (4) years), will result in more rigorous BIE-determined 
action, such as implementation of interventions (which may include 
addressing school-level operations); and
    (2) Schools identified for additional targeted support, which, if 
not satisfied within a BIE-determined number of years, will, in the 
case of schools receiving Title I funds, result in identification of 
the school by the BIE for comprehensive support and improvement.
    (b) The Secretary will also periodically review resource allocation 
to support school improvement.

Subpart D--Responsibilities and Accountability


Sec.  30.125  What is required for the Bureau to meet its reporting 
responsibilities?

    The Bureau is required to prepare and disseminate widely to the 
public an annual report card for the BIE-funded school system as a 
whole, and also report cards for individual BIE-funded schools, 
consistent with the requirements of section 1111(h) of the

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Act. The BIE's annual report card will be made available on the 
internet along with all BIE-funded school report cards.


Sec.  30.126  What information collections have been approved?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-0191. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB Control Number.

    Dated: December 20, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.

    Editorial note:  This document was received for publication by 
the Office of the Federal Register on March 19, 2020.

[FR Doc. 2020-06148 Filed 3-25-20; 8:45 am]
 BILLING CODE 4337-15-P