[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 63008-63011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25190]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
No Child Left Behind Act of 2001
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 regarding Bureau of Indian
Education (BIE)-funded school facilities under the No Child Left Behind
Act of 2001. As required by the No Child Left Behind Act, the Secretary
will select representatives of Indian tribes for the committee from
among individuals nominated by tribes whose students attend BIE-funded
schools either operated by the bureau or by the tribe through a
contract or grant. To the maximum extent possible, the proportional
representation of tribes on the committee will reflect the
proportionate share of students from tribes served by the BIE-funded
school system. In addition, the Secretary will consider the balance of
representation with regard to geographical location, size, and type of
school and facility, as well as the interests of parents, teachers,
administrators, and school board members, in selecting tribal committee
representatives.
As required in the NCLB Act, the committee shall prepare and submit
to the Secretary of the Interior a report or reports setting out:
A method for creating a catalog of school facilities;
The school replacement and new construction needs of the
interested parties, and a formula for the equitable distribution of
funds to address those needs;
The major and minor renovation needs of the interested
parties, and a formula for the equitable distribution of funds to
address such needs; and
Facilities standards for home-living (dormitory)
situations.
DATES: Nominations from tribes for membership in the negotiated
rulemaking committee and comments on the establishment of this
committee, including additional interests other than those identified
in this notice, must be postmarked or faxed no later than December 8,
2008.
ADDRESSES: Send nominations and comments to the Designated Federal
Official, at the following address: Michele F. Singer, Director, Office
of Regulatory Management, Office of the Assistant Secretary--Indian
Affairs, 1001 Indian School Road, NW., Suite 312, Albuquerque, NM
87104. Or fax to (505) 563-3811.
FOR FURTHER INFORMATION CONTACT: Michele F. Singer, Designated Federal
Official. Telephone: (505) 563-3805. Fax: (505) 563-3811.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. The Concept of Negotiated Rulemaking
IV. Facilitation
V. The No Child Left Behind Negotiated Rulemaking Committee
A. Purpose of the Committee
B. Committee Member Responsibilities
C. Composition of the Committee
D. Administrative and Technical Support
E. Training and Organization
F. Interests Identified Through Consultation
VI. Request for Nominations
VII. Submitting Nominations
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 report(s) under the No Child Left Behind Act (Pub. L. 107-110,
codified at 25 U.S.C. 2001 et seq.). The objectives of the committee
are to represent the interests that will be significantly affected by
the final report or regulations, to negotiate in good faith, and to
reach consensus, where possible, on recommendations to the Secretary
for the report or proposed regulations.
The NCLB directs the Secretary to conduct a negotiated rulemaking
pursuant to the NRA. The NRA requires an agency head to give
consideration to seven factors when determining whether a negotiate
rulemaking is appropriate, specifically, whether:
(1) There is a need for a rule;
(2) There are a limited number of identifiable interests that will
be significantly affected by the rule;
(3) There is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who--
(A) Can adequately represent the interests identified under
paragraph (2); and
(B) Are willing to negotiate in good faith to reach a consensus on
the proposed rule;
(4) There is a reasonable likelihood that a committee will reach a
consensus on the proposed rule within a fixed period of time;
(5) The negotiated rulemaking procedure will not unreasonably delay
the notice of proposed rulemaking and the issuance of the final rule;
(6) The agency has adequate resources and is willing to commit such
resources, including technical assistance, to the committee; and
(7) The agency, to the maximum extent possible consistent with the
legal obligations of the agency, will use the consensus of the
committee with respect to the proposed rule as the basis for the rule
proposed by the agency for notice and comment.
Upon reviewing the analysis of these seven considerations set out
in the convening report, the Secretary, through the authority delegated
to George Skibine, Acting Deputy Assistant Secretary for Policy and
Economic Development--Indian Affairs, has determined that a negotiated
rulemaking is appropriate.
II. Background
In the fall of 2006, the Department sought assistance with this
effort from the U.S. Institute for Environmental Conflict Resolution
(U.S. Institute), an
[[Page 63009]]
independent impartial government entity with expertise in the
alternative dispute resolution process. The U.S. Institute's statutory
authority is the Environmental Policy and Conflict Resolution Act of
1998 (Pub. L. 105-156, codified at 20 U.S.C. 5601 et seq.). (For more
information on the U.S. Institute, please visit http://www.ecr.gov.)
The U.S. Institute conducted a convening assessment and contracted with
an independent, impartial convening team, the Consensus Building
Institute (CBI), to carry out interviews and prepare a draft convening
report. Pursuant to the mandates of the No Child Left Behind Act, the
topics covered in CBI's interviews were: Methods used to catalog school
facilities, formulas for prioritizing and funding school replacement
construction and new construction, and formulas for prioritizing and
funding school renovation and repair. To understand the range of
perspectives on or interests in these topics, the convening team
conducted confidential interviews with tribal officials or their
designees, representatives of BIE-operated or tribally controlled
schools, and others with an interest in BIE-funded school facilities
construction. The team also conducted two focus group sessions at the
July 2007 BIE's first National Partnership Conference, organized by the
National Indian School Board Association. Altogether, the team spoke
with 198 individuals, representing some 99 different schools. In its
final report, CBI provided recommendations to assign committee seats
according to the Congressional mandate for proportionality using
student enrollment figures from 2006 and also suggested that seats be
allocated to other tribes and tribal entities to maximize
representation. The Final Convening Report prepared by CBI was released
on March 5, 2008, and can be accessed at http://ecr.gov/pdf/BIA_FinalConvRpt200803.pdf;
The No Child Left Behind Act requires the Secretary to establish a
negotiated rulemaking committee to issue reports to the Secretary
relating to several specific areas of Indian education (see 25 U.S.C.
2018). In addition, the Act requires the Secretary to:
Form the negotiated rulemaking committee under the NRA and
FACA to negotiate and develop recommendations for certain reports and
proposed regulations;
Convene regional meetings, prior to establishing the
negotiated rulemaking committee, to consult with personnel of the BIE,
educators at BIE-funded schools, and tribal officials, parents,
teachers, administrators, and school board members of tribes to provide
guidance to the Secretary;
Reflect the unique government-to-government relationship
between Indian tribes and the United States in accordance with
Executive Order 13175 dated November 6, 2000, in establishing a
negotiated rulemaking committee;
Ensure that the membership of the committee includes only
representatives of the Federal Government and of tribes served by BIE-
funded schools;
Select the tribal representatives for the committee from
among individuals nominated by the tribes; and
Ensure, to the maximum extent possible, that the tribal
membership on the committee reflects the proportionate share of
students from tribes served by the BIE-funded school system. (To access
the recommended tribal representative membership on the committee
reflected by the proportionate share from tribes served by the BIE-
funded school system, please refer to the Final Convening Report
prepared by CBI at http://ecr.gov/pdf/BIA_FinalConvRpt200803.pdf.)
III. The Concept of Negotiated Rulemaking
The negotiated rulemaking process is fundamentally different from
the usual process for proposed regulations. 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 regulations 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 proposed regulations are published. It also allows the affected
parties to share information, knowledge, expertise, and technical
abilities and to resolve their concerns about the regulations 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 agrees to define such term
to mean a general but not unanimous concurrence or agrees upon another
specified definition. The agency head, to the maximum extent possible
consistent with the agency's legal obligations, uses the consensus of
the advisory committee as the basis for proposed regulations.
IV. Facilitation
Experience of various Federal agencies in negotiated rulemaking has
demonstrated that using a trained neutral to facilitate the process
will assist all parties during negotiations to identify their real
interest, evaluate their positions, communicate effectively, find
common ground, and reach consensus where possible. The Secretary is
using the facilitation of CBI (contractor) through the U.S. Institute
for Environmental Conflict Resolution to assist with convening and
facilitating the first committee meeting. With the approval of the
committee, the contractor will facilitate the subsequent committee
meetings and provide other services as outlined in the NRA.
The facilitation team will be available to assist tribes or groups
of tribes in selecting nominees who can meet the nomination criteria
and represent the interests of multiple tribes and schools. For such
assistance, Tribes may contact Sarah Palmer, Senior Program, Manager,
U.S. Institute for Environmental Conflict Resolution, 130 South Scott
Avenue, Tucson, AZ 85701, Direct Telephone: (520) 901-8556 E-mail:
[email protected]. Web site: www.ecr.gov.
V. The No Child Left Behind Negotiated Rulemaking Committee
As required by the Act, the No Child Left Behind Negotiated
Rulemaking Committee will be formed and will operate under the NRA and
FACA.
A. Purpose of the Committee
As required in the NCLB Act, the committee shall prepare and submit
to the Secretary of the Interior a report or reports setting out:
A method for creating a catalog of school facilities that
takes into consideration 25 U.S.C. 2005(a)(5)(A)(i)(I)-(V);
The school replacement and new construction needs of the
interested parties, and a formula for the equitable distribution of
funds to address those needs, based on the requirements of 25 U.S.C.
2005(a)(5)(A)(ii);
The major and minor renovation needs of the interested
parties, and a formula for the equitable distribution of funds to
address such needs, based on
[[Page 63010]]
the requirements of 25 U.S.C. 2005(a)(5)(A)(iii); and
Facilities standards for home-living (dormitory)
situations, based on the requirements of 25 U.S.C. 2002(a)(1).
B. Committee Member Responsibilities
The Committee is expected to meet approximately five times. The
meetings will be held at various locations across Indian country, and
will last two to three days each. Committee members will also be
expected to participate in at least one of several regional
consultations. The Committee's work is expected to occur over the
course of 12-18 months.
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. The neutral convener will have
resources available to fund travel and/or expenses for additional
caucusing efforts. Alternate members will not be permitted to represent
those individuals appointed by the Secretary without prior written
agreement with the Department. An appointed committee member may be
removed and replaced if that committee member fails to attend two
consecutive meetings or fails to attend a total of three committee
meetings. The resulting vacancy would be filled in the same manner as
the original appointment was made.
Because of the scope and complexity of the tasks at hand, 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, work on committee work groups, consult with their
constituencies between committee meetings, and negotiate in good faith
toward a consensus on issues before the committee. Because of the
complexity of the issues under consideration, as well as the need for
continuity, the Secretary reserves the right to replace any member who
is unable to fully participate in the committee's meetings.
C. Composition of the Committee
The Secretary is seeking nominations for tribal representatives,
consistent with the provisions of 25 U.S.C. 2018, to serve on the
committee who have a demonstrated ability to communicate well with
groups about interests they will represent.
Tribal committee membership must:
Meet the Act's requirements for proportionate
representation of tribes served by BIE-funded schools;
Be selected from among individuals nominated by tribes who
have students attending BIE-funded schools either operated by the
bureau or by the tribe through a contract or grant;
Mirror the proportionate share of students from the tribes
served by the BIE-funded school system; and
Reflect the interests identified in comments submitted to
the Department in response to the Federal Register notices at 72 FR
59556 and 72 FR 72391, or other interests identified in response to
this notice.
The Act requires the Secretary to ensure that the various interests
affected by the proposed report, reports or rules be represented on the
negotiated rulemaking committee. In making membership decisions, the
Secretary shall consider whether the interest represented by a nominee
will be affected significantly by the final products of the committee,
which may include report(s) and/or proposed regulations, whether that
interest is already adequately represented by tribal nominees, and
whether the potential addition would adequately represent that
interest.
If nominations received in response to this notice do not
adequately meet the statutory requirements for tribal committee
membership, or do not represent the interests that will be
significantly affected by the regulations, the Secretary may add
representatives of his own choosing. The Secretary's decisions
regarding the addition of representatives will be based on: meeting the
requirements of the Act; achieving a balanced committee; and assessing
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.
D. Administrative and Technical Support
The BIA Office of Facilities Management and Construction (OFMC)
will provide technical support for the committee. A Project Management
Officer (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. OFMC personnel
will provide technical support on various school construction and
related issues as needed.
E. Training and Organization
At the first meeting of the No Child Left Behind Negotiated
Rulemaking Committee, a neutral facilitator will provide training on
negotiated rulemaking, interest-based 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 and all subsequent meetings.
F. 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 interviews with BIE personnel,
educators at Bureau schools, and tribal officials, parents, teachers,
administrators, and school board members of tribes served by BIE-funded
schools, and through written comments, the interests detailed in
Section VI were identified.
There may be other interests not yet identified that will be
significantly affected by the final report, reports, or regulations.
The Department is accepting comments until the date listed in the DATES
section of this notice, identifying other interests that may be
significantly affected by the final products of the committee, which
may include report(s) and/or proposed regulations.
VI. Request for Nominations
Under the requirements stated in the Background section, the
Secretary invites tribes whose students attend BIE-funded schools
either operated by the Bureau or by the tribe through a contract or
grant, to nominate tribal representatives to serve on the committee and
tribal alternates to serve when the representative is unavailable. With
the use of the proportionate share of students, some tribes similar in
affiliation or geography are grouped together for one seat. There will
be a need for nominating tribes to either agree to nominate and thus
share a representative across tribal-jurisdictions or each at least
have the opportunity to nominate a member for that particular seat.
Each nomination is expected to include a nomination for a
representative and an alternate who can fulfill the obligations of
membership
[[Page 63011]]
should the representative be unable to attend. Because committee
membership should reflect the diversity of tribal interests,
representatives of tribal and tribally operated schools should nominate
representatives and alternates who will:
Have knowledge of school facilities and their repair,
renovation, and construction (this may include knowledge and skills of
construction project management, school facilities operation and
management, construction cost estimation, education program space
needs, budgeting and appropriation, engineering);
Have relevant experience as past or present
superintendents, principals, facility managers, teachers, or school
board members or possess direct experience with school construction
projects;
Be able to coordinate, to the extent possible, with other
tribes and schools who may not be represented on the committee;
Be able to represent the tribe(s) with the authority to
embody tribal views, communicate with tribal constituents, and have a
clear means to reach agreement on behalf of the tribe(s);
Be able to negotiate effectively on behalf of the tribe(s)
represented;
Be able to commit the time and effort required to attend
and prepare for meetings; and
Be able to collaborate among diverse parties in a
consensus-seeking process.
In addition, in order for tribes and schools with too few students
to be represented under the proportional membership computation, the
Secretary invites nominations from the following parties who would be
affected by the final products of the committee may include report(s)
and/or proposed regulations:
Tribes served by BIE-funded schools not represented by the
tribes allocated seats according to share of student enrollment,
(please refer to the Final Convening Report prepared by CBI, p.38 at
http://ecr.gov/pdf/BIA_FinalConvRpt200803.pdf);
Tribes who will help to increase the geographic diversity
of representation on the committee;
Representatives who will help to increase the diversity of
types of schools represented (e.g., off-reservation boarding schools,
dorms, and schools serving multiple tribes);
Representatives who might be nominated by multiple tribes
or regional tribal associations and have ability to coordinate and
represent a coalition or group of like-minded tribes and schools; and
Representatives of regional or national Indian education
organizations. Nominees of these interests, like the proportionate-
share nominees, must meet the criteria of this section.
VII. 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 appoint Federal employees to the committee.
Nominations must include the following information about each
tribal committee member nominee:
(1) The nominee's name, tribal affiliation, job title, major job
duties, employer, business address, business telephone and fax numbers
(and business e-mail address, if applicable);
(2) The tribal interest(s) to be represented by the nominee (see
section V of this notice) and whether the nominee will represent other
interest(s) related to this rulemaking, as the tribe may designate;
(3) A resume reflecting the nominee's qualifications and experience
in Indian education (including being a parent of a student attending a
BIE-funded school) and experience in any phase of school facility
construction (including master planning, project planning, design,
construction, and facility management), to adequately represent the
interest(s) identified in (2) above; and
(4) A brief description of how they will represent tribal views,
communicate with tribal constituents, and have a clear means to reach
agreement on behalf of the tribe(s) they are representing.
Additionally, a statement whether the nominee is only representing one
tribe's views or whether the expectation is that the nominee represents
a group of tribes.
To be considered, nominations must be received by the close of
business on the date listed in the DATES section, at the location
indicated in the ADDRESSES section. Nominations and comments received
will be available for inspection at the address listed above from 8
a.m. to 4 p.m., Monday through Friday, except Federal holidays.
Dated: October 14, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development--
Indian Affairs.
[FR Doc. E8-25190 Filed 10-21-08; 8:45 am]
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