[Federal Register: December 10, 2002 (Volume 67, Number 237)]
[Proposed Rules]
[Page 75828-75831]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de02-14]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Chapter I, Subchapter E
Negotiated Rulemaking, No Child Left Behind Act of 2001, Public
Law 107-110
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of intent to form a negotiated rulemaking committee;
request for nominations for tribal representatives for No Child Left
Behind Negotiated Rulemaking Committee membership.
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SUMMARY: The Secretary of the Interior is announcing the Department's
intent to form a Negotiated Rulemaking Committee to develop
recommendations for proposed regulations under the No Child Left Behind
Act of 2001. The Secretary will select tribal representatives for the
committee from among individuals nominated by the representatives of
the tribal (contract and grant schools) and tribally operated schools
pursuant to this notice. As required by the No Child Left Behind Act,
tribal committee representatives selected will, to the maximum extent
possible, proportionately reflect students from tribes served by the
Bureau of Indian Affairs-funded school system. In addition, the
Secretary will consider geographical location, size, and type of school
and facility and interests of parents, teachers, administrators, and
school board members in selecting tribal committee representatives.
DATES: Nominations for tribal committee membership and comments on the
establishment of this Committee, including additional interests other
than those identified in this notice, must be postmarked or faxed by
January 9, 2003.
ADDRESSES: Send nominations and comments to No Child Left Behind
Negotiated Rulemaking Committee Nominations, c/o Starr Penland, Office
of Indian Education Programs, Bureau of Indian Affairs, U.S. Department
of the Interior, MS 3512-MIB, 1849 C Street, NW., Washington, DC 20240,
or FAX to Starr Penland at 202-273-0030.
Nominations and comments received will be available for inspection
at the address listed above from 7:45 a.m. to 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Catherine Freels, Designated Federal
Official, No Child Left Behind Negotiated Rulemaking, U.S. Department
of the Interior, Office of the Regional Solicitor, Southwest Region,
505 Marquette Avenue, NW., Albuquerque, New Mexico, 87102, telephone
505-248-5605, FAX 505-248-5623.
SUPPLEMENTARY INFORMATION:
I. Introduction
The purpose of the No Child Left Behind Negotiated Rulemaking
Committee is to serve as an advisory committee under the Federal
Advisory Committee Act (FACA) and the Negotiated Rulemaking Act (NRA)
to provide recommendations to the Secretary of the Interior for
proposed regulations under Public Law 107-110 for which Congress has
authorized rulemaking. (Sections 1116(g), 1124, 1127, sections 1130,
1136, and 1043.) The objectives of the committee are to represent the
interests that will be significantly affected by the final regulations,
to negotiate in good faith, and to reach consensus, where possible, on
recommendations to the Secretary for the proposed regulations.
In order to proceed with negotiated rulemaking, the NRA requires
that the Secretary make certain findings when establishing a negotiated
rulemaking committee. In addition to finding that there is a need for
negotiated rulemaking under the Act, the Secretary has determined that
there are a limited number of identifiable interests that will be
significantly affected by the rule; there is a reasonable likelihood
that a committee can be convened of persons who will adequately
represent those interests which would be significantly affected by the
rule and who are willing to negotiate in good faith to reach a
consensus on the proposed rule; the negotiated rulemaking procedure
will not unreasonably delay the notice of proposed rulemaking and the
issuance of the final rule; and the Department has adequate resources
and is willing to commit such resources, including technical
assistance, to the rulemaking committee.
II. Background
Public Law 107-110, section 1138 the No Child Left Behind Act of
2001, requires the Secretary to issue proposed regulations relating to
several specific areas of Indian education by June 2003. The Act
requires the Secretary to develop these regulations using the
negotiated rulemaking process. It also requires the following:
1. The Secretary must form the negotiated rulemaking committee
under the Negotiated Rulemaking Act (NRA) and the Federal Advisory
Committee Act (FACA) to negotiate and develop recommendations for
proposed regulations.
2. Before establishing a negotiated rulemaking committee, the
Secretary must conduct regional consultation meetings to obtain
guidance on the content of the proposed regulations.
3. In establishing a negotiated rulemaking committee, the Secretary
must reflect the unique government-to-government relationship between
Indian tribes and the United States.
4. The Secretary must ensure that the committee is comprised only
of representatives of the Federal Government and of Indian tribes;
select the tribal representatives of the committee from among
individuals nominated by the representatives of the tribal and tribally
operated schools; and ensure, to the maximum extent possible, that the
tribal representative membership on the committee reflects the
proportionate share of students from tribes served by the Bureau-funded
school system. (The table at the end of this notice shows tribal
enrollment in Bureau-funded schools. For each of the 20 tribes with the
largest enrollment, the list shows the number of students and the
percentage of total enrollment that the tribe represents. For the
remaining tribes, the table contains the aggregate enrollment and
percentage. We will use these percentages in determining proportional
representation.)
The Act specifies six sections that are authorized to be negotiated
to produce recommendations for a proposed rule by the June 2003
deadline:
1. Section 1116(g), which covers defining adequate yearly progress
which is the essential measurement for determining that schools are
providing quality education;
2. Section 1124, which covers establishing separate geographic
attendance areas for each Bureau-funded school;
[[Page 75829]]
3. Section 1127, which covers establishing a formula for
determining the minimum annual amount of funds necessary to fund each
Bureau-funded school;
4. Section 1130, which covers establishing a system for the direct
funding and support of all Bureau-funded schools under the formula
established under section 1127;
5. Section 1136, which covers establishing guidelines to ensure the
constitutional and civil rights of Indian students regarding the right
to privacy, freedom of religion and expression, and due process in
connection with disciplinary actions (suspension and expulsion); and
6. Section 1043, which covers establishing a method for
administration of grants under the Tribally Controlled Schools Act of
1988. These sections of the Act are available on the OIEP web site at
http://www.OIEP.bia.edu.
III. The Concept of Negotiated Rulemaking
The negotiated rulemaking process is fundamentally different from
the usual development process for proposed rules. Most proposed
regulations are drafted by a Federal agency without public
participation and are then published for public comment. Affected
parties submit comments supporting their positions during the public
comment period without communicating with other affected parties. Under
the negotiated rulemaking process, an advisory committee of
representatives of the interests that will be significantly affected by
the final rule negotiates the provisions of the proposed rule with the
agency. Negotiated rulemaking allows the Federal agency and the
affected interests represented on the committee to discuss possible
approaches to various issues and to negotiate the content of the
regulations before a proposed rule is published. It also allows the
affected parties to share information, knowledge, expertise, and
technical abilities and to resolve their concerns about the rule before
publication.
The key principles of negotiated rulemaking are that agreement is
by consensus of all the interests and that no one interest or group
controls or dominates the process. The NRA defines consensus as the
unanimous concurrence among interests represented on a negotiated
rulemaking committee, unless the committee itself unanimously agrees to
use a different definition. The Secretary, to the maximum extent
possible consistent with the Department's legal obligations, will use
the consensus of the advisory committee as the basis for the proposed
regulations.
A. Facilitation
Experience of various Federal agencies in negotiated rulemaking has
demonstrated that using a trained, third-party neutral to facilitate
the process will assist all parties during negotiations to identify
their real interests, reevaluate their positions, communicate
effectively, find common ground, and reach consensus where possible.
The Secretary has contracted with Lucy Moore Associates of Santa Fe,
New Mexico to assist with the regional consultation meetings prior to
the formation of the committee, to provide a report of issues and
interests identified at those meetings, and to provide facilitation and
training at the first committee meeting. With the approval of the
committee, Lucy Moore Associates will facilitate the subsequent
committee meetings and provide other services as outlined in the NRA.
Lucy Moore has 20 years experience as a mediator and facilitator,
working on a wide variety of issues with tribal governments and
communities.
B. Establishing the No Child Left Behind Negotiated Rulemaking
Committee
The No Child Left Behind Negotiated Rulemaking Committee is an
advisory committee under FACA. As required by the Act, the committee
will be formed and will operate under the NRA and FACA. The purpose of
the negotiated rulemaking committee is to negotiate and recommend to
the Secretary the provisions of the proposed regulations. Committee
members will not receive pay for their membership, but will be
compensated for travel and per diem expenses while performing official
committee business, consistent with the provisions of 5 U.S.C. 568(c)
and Federal travel regulations. Alternates will not be reimbursed for
travel and per diem unless they are representing a committee member who
is unable to attend a meeting. Alternate members will not be permitted
to represent those individuals appointed by the Secretary without prior
written agreement with the Department.
Because of the tight deadline for publishing proposed rules,
committee members must be able to invest considerable time and effort
in the negotiated rulemaking process. Committee members must be able to
attend committee meetings which will be held at least monthly in the
regions which have Bureau-funded schools, work on committee work groups
between committee meetings, and negotiate in good faith toward a
consensus on issues before the committee. The Secretary is seeking
tribal committee representative nominees with demonstrated ability to
communicate well with groups or interests they will represent. Because
of the complexity of the issues the committee will consider and the
need for continuity, the Secretary reserves the right to replace any
member who is unable to fully participate in the committee's meetings.
Tribal committee membership must reflect:
[sbull] The statutory requirements under the Act for tribal
representation of tribes served by Bureau-funded schools; selection
from among individuals nominated by representatives of the tribal and
tribally operated schools; and tribal committee membership reflecting a
proportionate share of students from the tribes served by the Bureau-
funded school system; and
[sbull] The interests identified through the regional consultation
meetings held in August and September 2002, or in comments submitted to
the Department by September 15, 2002, pursuant to the Federal Register
notice at 67 FR 47827 (July 22, 2002) or other interests identified in
response to this notice.
The Secretary's decision on the composition of the committee will
be based on the requirements of the Act, achieving a balanced
committee, whether an interest will be affected significantly by the
final rule, whether that interest is already adequately represented by
tribal nominees, and whether the potential addition would adequately
represent that interest.
C. Administrative and Technical Support
The Office of Indian Education Programs will provide technical
support for the committee. A Project Management Office (PMO) will
arrange meeting sites and accommodations, ensure adequate logistical
support (equipment, personnel, etc.) at committee meetings, provide
committee members with all relevant information, distribute written
materials, ensure timely reimbursement of authorized expenses for
committee members, maintain records of the committee's work, and
support the committee as otherwise required. OIEP personnel will
provide technical support on various Indian Education issues as needed.
D. Training
At the first meeting of the No Child Left Behind Negotiated
Rulemaking Committee, a neutral third-party facilitator will provide
training on negotiated rulemaking, interest-based
[[Page 75830]]
negotiations, consensus-building, and team-building. In addition, at
the first meeting committee members will make organizational decisions
concerning protocols, scheduling, and facilitation of the committee.
All committee members must attend the first meeting.
IV. Interests Identified Through Consultation
Under section 562 of the NRA, ``interest'' is defined as follows:
``interest means, with respect to an issue or matter, multiple parties
which have a similar point of view or which are likely to be affected
in a similar manner.'' through 14 regional consultation meetings for
OIEP personnel, educators at Bureau schools, and tribal officials,
parents, teachers, administrators, and school board members of tribes
served by Bureau-funded schools and through written comments, the
following interests were identified: Teachers; parents; school board
members; students; school staff; school administrators; state
departments of education; public school representatives; and federal
decision-makers. In addition, it was recommended that different types
and sizes and geographic representation of schools should be
represented in the appointments from the interest groups above,
including: Grant/tribally-controlled schools; off-reservation boarding
schools; small schools; and alternative schools. In addition, at each
regional consultation meeting there were numerous oral comments giving
guidance on proposed regulations.
There may be other interests not yet identified that will be
significantly affected by the final rule. The Department is accepting
comments until January 9, 2003, identifying other interests that may be
significantly affected by the final regulations.
V. Request for Nominations
Under the requirements stated in the Background section, the
Secretary invites representatives of tribal (contract and grant
schools) and tribally operated schools to nominate tribal
representatives to serve on the committee and tribal alternates to
serve if the representative is unavailable. Because committee
membership should reflect the diversity of tribal interests,
representatives of tribal (contract and grant schools) and tribally
operated schools should nominate representatives who will:
1. Represent the interests of students, parents, teachers, school
board members, and school administrators they are nominated to
represent;
2. Reflect the spectrum of grant/tribally-controlled schools, off-
reservation boarding schools, various size schools, and alternative
schools in the geographic regions;
3. Communicate with the constituencies they represent; and
4. Participate fully in the committee's activities.
VI. Submitting Nominations
The Secretary will consider only nominations for tribal committee
representatives nominated through the process identified in this
Federal Register notice. Nominations received in any other manner or
for Federal representatives will not be considered. Only the Secretary
may nominate Federal employees to the committee.
Nominations must include the following information about each
nominee for tribal committee member:
1. the nominee's name, business address, telephone and fax number
(and e-mail address, if applicable);
2. The tribal interest(s) to be represented by the nominee
(teacher, parent, school administrators, or school board member) and
whether the nominee will represent the interest of grant/tribally-
controlled schools, off-reservation boarding schools, small or large
school or alternative schools in a specific geographic region (see
section IV of this notice) or other interest related to this
rulemaking, as the tribe may designated; and
3. A resume[acute] reflecting the nominee's qualifications and
experience in Indian education (including being a parent of a student
attending a Bureau-funded school) to adequately represent the
interest(s) identified in (2) above.
To be considered, nominations must be received by the close of
business on January 9, 2003, at the location indicated in the ADDRESSES
section.
Dated: December 3, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
Proportionate share is reflected in the percentages of students
from the tribes served by Bureau-funded schools. The percentages of the
20 tribes with the most students is as follows:
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Student count:
Tribe student year 01- State Percent
02
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Eastern Navajo................................. 4,665 NM ..............
Western Navajo................................. 4,362 AZ ..............
Chinle Navajo.................................. 3,579 AZ ..............
Ft. Defiance Navajo............................ 3,361 AZ ..............
Shiprock, Navajo............................... 2,379 NM ..............
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Total Navajo............................... 18,346 ............................. 38.09
Oglala Sioux................................... 3,296 SD 6.84
Turtle Mt. Chippewa............................ 2,146 ND 4.46
MS Choctaw..................................... 1,889 MS 3.92
Cheyenne River Sioux........................... 1,377 SD 2.86
Hopi........................................... 1,321 AZ 2.74
Eastern Cherokee............................... 1,156 NC 2.40
Rosebud Sioux.................................. 1,008 SD 2.09
Standing Rock Sioux............................ 948 SD/ND 1.97
White Mt. Apache............................... 911 AZ 1.89
Gila River..................................... 864 AZ 1.79
Tohono O'odham................................. 768 AZ 1.59
Pueblo of Laguna............................... 562 NM 1.17
Sisseton Wahpeton Sioux........................ 541 SD 1.12
Three Affiliated............................... 497 ND 1.03
Spirit Lake Sioux.............................. 485 ND 1.01
Mescalero Apache............................... 441 NM .92
Pueblo of San Felipe........................... 418 NM .87
[[Page 75831]]
Ramah Navajo................................... 393 NM .82
Crow Creek Sioux............................... 389 SD .81
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Total for 20 tribes........................ 37,756 ............................. 78.39
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Other tribes............................... 10,410 ............................. 21.61
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[FR Doc. 02-31121 Filed 12-9-02; 8:45 am]