[Federal Register Volume 67, Number 237 (Tuesday, December 10, 2002)]
[Proposed Rules]
[Pages 75828-75831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31121]


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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                             ..............
                                                ------------------                               ---------------
 
    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
                                                ------------------                               ---------------
    Total for 20 tribes........................            37,756  .............................           78.39
                                                ==================                               ===============
    Other tribes...............................            10,410  .............................           21.61
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[FR Doc. 02-31121 Filed 12-9-02; 8:45 am]
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