The Bureau of Indian Education (BIE) is proposing a rule developed using a negotiated rulemaking process, as required by the 2015 Every Student Succeeds Act (ESSA), for implementation of the Secretary of the Interior's obligation to define the standards, assessments, and accountability system consistent with ESSA for BIE-funded schools.

The Office of Indian Education Programs (OIEP), now the BIE, published the existing rule for Adequate Yearly Progress (AYP), codified at 25 CFR part 30 (part 30), in the Federal Register on April 28, 2005 (70 FR 22178), effective May 31, 2005. The Elementary and Secondary Education Act of 1965 (ESEA), as amended and reauthorized by the No Child Left Behind Act of 2001 (NCLB), Public Law 107-110, required the Secretary of the Interior (Secretary) to engage in a negotiated rulemaking process to define AYP. NCLB required that AYP be defined on a regional or Tribal basis, as appropriate, taking into account the unique circumstances and needs of BIE-funded schools and the students served by those schools and provided further that, consistent with the negotiated rulemaking requirement, the Secretary could use State definitions of AYP. The NCLB Negotiated Rulemaking Committee ultimately recommended a rule requiring the BIE to use the definition of AYP of the State in which a BIE-funded school is located, with the option for a Tribal governing body or school board to develop and implement alternative definitions of AYP. The existing part 30 resulted from that recommendation.

There are BIE-funded schools in 23 different States, each State having its own accountability system. As a result, under the existing rule, each State system has produced student achievement data for BIE-funded schools that is not comparable with data from BIE-funded schools following the requirements of other States. This outcome has created problems for the BIE in identifying under-performing schools, reporting, and in directing resources effectively.

On November 9, 2015, BIE published a notice of intent requesting nominations for members of a proposed negotiated rulemaking committee to recommend revisions to the existing part 30 AYP regulations (80 FR 69161). On December 10, 2015, ESEA was reauthorized and amended by the ESSA (Pub. L. 114-95). The ESSA requires the Secretary to use a negotiated rulemaking process to develop regulations to implement the Secretary's responsibility to define the standards, assessments, and accountability system, consistent with ESEA section 1111, for BIE-funded 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 by the schools. The requirement that the Secretary define the standards, assessments, and accountability system marks a significant expansion of requirements in the ESEA as amended by NCLB. The reauthorization of ESEA therefore required an update to the subject, scope, and issues that the proposed committee would address. On April 14, 2016, BIE announced its intent to expand the scope of the work of the committee and reopened the comment and nomination period, requesting comments and nominations by May 31, 2016 (81 FR 22039). The request for nominations was extended on August 17, 2016 (81 FR 54768). On January 18, 2017, a notice of proposed membership, request for nominations, and a request for comments was published (82 FR 5473). On September 14, 2017, taking into consideration the interests of the new Administration in participating fully in the negotiated rulemaking process, BIE published a new request for nominations and notice of intent to establish a negotiated rulemaking committee (82 FR 43199). On April 17, 2018, the BIE published a notice of proposed membership of the committee and a request for further nominations (83 FR 16806).