[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Rules and Regulations]
[Pages 30888-30891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12678]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 36

[Docket ID: BIA-2012-0001]
RIN 1076-AF10


Heating, Cooling, and Lighting Standards for Bureau-Funded 
Dormitory Facilities

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Interim final rule with request for comments.

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SUMMARY: As required by the No Child Left Behind Act of 2001, the 
Secretary of the Interior has developed regulations using negotiated 
rulemaking that address heating, cooling, and lighting standards for 
Bureau-funded dormitory facilities. These regulations also make a 
technical change to remove an obsolete reference.

DATES: This rule is effective on May 24, 2012. Please submit written 
comments by June 25, 2012. The incorporation by reference of certain 
publications listed in the regulations is approved by the Director of 
the Federal Register as of May 24, 2012.

ADDRESSES: You may submit comments by any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2012-0001. If you would like to submit 
comments through the Federal e-Rulemaking Portal, go to 
www.regulations.gov and do the following. Go to the box entitled 
``Enter Keyword or ID,'' type in ``BIA-2012-0001,'' and click the 
``Search'' button. The next screen will display the Docket Search 
Results for the rulemaking. If you click on BIA-2012-0001, you can view 
this rule and submit a comment. You can also view any supporting 
material and any comments submitted by others.
--Email: [email protected]. Include the number 1076-AF10 in the 
subject line of the message.
--Fax: (505) 563-3811. Include the number 1076-AF10 in the subject line 
of the message.
--Mail: Regina Gilbert, Office of Regulatory Affairs & Collaborative 
Action, U.S. Department of the Interior, 1001 Indian School Road NW., 
Suite 312, Albuquerque, NM 87104. Include the number 1076-AF10 in the 
subject line of the message.
--Hand delivery: Regina Gilbert, Office of Regulatory Affairs & 
Collaborative Action, U.S. Department of the Interior, 1001 Indian 
School Road NW., Suite 312, Albuquerque, NM 87104. Include the number 
1076-AF10 in the subject line of the message.

    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Regina Gilbert, Office of Regulatory 
Affairs and Collaborative Action, Office of the Assistant Secretary--
Indian Affairs, 1001 Indian School Road NW., Suite 312, Albuquerque, NM 
87104; telephone (505) 563-3805; fax (505) 563-3811.

SUPPLEMENTARY INFORMATION:

I. Background
II. Description of Changes
III. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Information Quality Act
    L. Effects on the Energy Supply (E.O. 13211)
    M. Clarity of This Regulation
    N. Public Availability of Comments
    O. Determination To Allow Shortened Public Comment Period

I. Background

    The U.S. Government is responsible for educating American Indian 
children. This Federal duty is executed by the Bureau of Indian Affairs 
within the Department of the Interior. The Bureau funds 183 schools 
serving American Indian children. In part because of the low population 
densities across much of Indian country, a number of these schools 
include dormitory (``home-living'') facilities. Many of these schools 
and associated facilities are in poor physical condition.
    The No Child Left Behind Act of 2001 (107 Pub. L. 110: 115 Stat. 
1425) (Act) included provisions intended to improve the quality of 
education provided at Bureau-funded schools, and the physical condition 
of the school facilities. The Act directed the Secretary of the 
Interior to establish a negotiated rulemaking committee, in accordance 
with the provisions of the Negotiated Rulemaking Act, to ensure maximum 
contribution by the affected Indian tribes in responding to the 
mandates of the Act.
    In 2003, the Secretary established a negotiated rulemaking 
committee, which held a series of meetings to address the mandates of 
the Act (the 2003 committee). On April 28, 2005, final rules developed 
by the 2003 committee were published in the Federal Register, 
addressing six components of the Act's mandates: defining adequate 
yearly progress; establishing geographic attendance areas for Bureau-
funded schools; establishing a formula for the minimum amount necessary 
to fund Bureau-funded schools; establishing a system of uniform direct 
funding and support for Bureau-operated schools; providing guidelines 
to ensure the Constitutional and civil rights of Indian students; and 
establishing a method for administering grants to tribally controlled 
schools. 70 FR 22178.

[[Page 30889]]

    Another section of the Act, codified at 25 U.S.C. 2002, directed 
that:

the Secretary [of the Interior], in consultation with the Secretary 
of Education, Indian organizations and tribes, and Bureau-funded 
schools, shall revise the national standards for home-living 
(dormitory) situations to include such factors as heating, lighting, 
cooling, adult-child ratios, needs for counselors (including special 
needs related to off-reservation home-living (dormitory) 
situations), therapeutic programs, space, and privacy.

    The 2003 committee promulgated rules addressing some of the 
components of section 2002, which were published on December 5, 2007, 
at 72 FR 68491. However, the 2003 committee had previously announced 
that:

    Standards relating to heating, cooling, and lighting of 
dormitories for home-living situations should be deferred for later 
consideration by the negotiated rulemaking committee charged with 
negotiating school construction under section 1125 of the Act. The 
Committee determined that it did not have the necessary expertise to 
define standards for these areas.

69 FR 41773, Monday, July 12, 2004.
    The section of the Act referred to by the 2003 committee in the 
passage quoted above directs the Secretary to form a negotiated 
rulemaking committee specifically to collect information on the 
physical condition of the Bureau-funded school facilities, and submit 
reports to the Secretary and to certain Congressional committees 
regarding the allocation of funds for the maintenance, repair, and 
replacement of such facilities. 25 U.S.C. 2005. To comply with that 
mandate, the Secretary chartered the No Child Left Behind School 
Facilities and Construction Negotiated Rulemaking Committee on December 
8, 2009 (the 2010 committee). Membership of the 2010 committee was 
published at 74 FR 65784 on December 11, 2009. The 2010 committee has 
held seven meetings at locations around Indian country through 
September 2011 to complete its work responding to the mandates of 25 
U.S.C. 2005. It has drafted an interim final rule to complete the work 
responding to the mandates of 25 U.S.C. 2002.
    Responsibility for the maintenance, repair, and replacement of 
Indian school facilities rests with the Office of Facilities Management 
and Construction (OFMC), under the Assistant Secretary--Indian Affairs. 
In designing such facilities, OFMC complies with the criteria set out 
in its ``School Facilities Design Handbook'' (handbook) dated March 30, 
2007, which can be found at www.bia.gov/WhoWeAre/AS-IA/ORM/Rulemaking/index.htm. The handbook identifies the building and design codes with 
which construction at Bureau-funded schools must comply.

II. Description of Changes

    The 2010 committee determined, by consensus, that the codes and 
standards identified in the handbook respecting heating, ventilation, 
air conditioning, and lighting are appropriate for home-living 
(dormitory) situations at Bureau-funded Indian education facilities. 
Therefore, the regulations being published today:
     Make the building and design codes identified in the 
handbook mandatory for Bureau-funded Indian education dormitories;
     Require the Bureau to give the public notice and an 
opportunity to comment on any proposal to change which standard 
building codes are incorporated in the handbook; and
     Make a technical change to remove reference to subpart H, 
which is no longer in existence, and replace with a reference to 
subpart G.

III. Procedural Requirements

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

    This interim final rule is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866. This rule implements statutory requirements to revise the 
national standards for home-living (dormitory) situations to include 
such factors as heating, lighting, and cooling. Such standards shall be 
implemented in Bureau-operated schools, and shall serve as minimum 
standards for contract or grant schools.
    This rule also makes a technical correction. On April 28, 2005, at 
70 FR 21951, subpart H was deleted, and the home-living regulations 
were placed in subpart G. Therefore, a technical correction is needed 
to correct the reference of subpart H to subpart G.
    1. This rule will not have an effect of $100 million or more on the 
economy or adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities. This 
rule will have no effect on the economy because it merely establishes 
the minimum standards for national criteria for home-living situations.
    2. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency because the 
Department is the only agency with Bureau-operated schools. This rule 
will affect tribes that operate schools that are contract or grant 
schools by following the minimum requirements for all new construction, 
major alterations and improvements, and minor remodeling of facilities.
    3. This rule does not involve entitlements, grants, user fees, or 
loan programs or the rights or obligations of recipients. The revisions 
have no budgetary effects and do not affect the rights or obligations 
of any recipients.
    4. These regulatory changes directly implement statutory provisions 
and do not raise novel legal or policy issues.
    Overall, the impact of the rule is limited to Bureau-operated 
schools, and tribes that operate schools that are contract or grant 
schools. Accordingly, this rule is not a ``significant regulatory 
action'' from an economic standpoint, nor does it otherwise create any 
inconsistencies, materially alter any budgetary impacts, or raise novel 
legal or policy issues.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document 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.). 
It does not change current funding requirements or regulate small 
entities.

C. Small Business Regulatory Enforcement Fairness Act

    This interim final rule is not a major rule under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. It will not 
result in the expenditure by State, local, or tribal governments, in 
the aggregate, or by the private sector of $100 million or more in any 
one year. Because the standards in this rule are already being met in 
practice, it will not result in a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Nor will this rule have significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of the U.S.-based enterprises to compete 
with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This interim final 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

[[Page 30890]]

Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this interim final 
rule does not affect individual property rights protected by the Fifth 
Amendment nor does it involve a compensable ``taking.'' A takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this interim final 
rule has no substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. This rule implements a statutory requirement in Public Law 
107-110, which requires national standards for home-living (dormitory) 
situations to include such factors as heating, lighting, and cooling. 
This Federal rule affects Bureau-operated schools and tribes that 
operate schools that are contract or grant schools by following the 
minimum requirements for all new construction, major alterations and 
improvements, and minor remodeling of facilities.
    Because the rule does not affect the Federal government's 
relationship to the States or the balance of power and responsibilities 
among various levels of government, it will not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

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

    This interim final rule complies with the requirements of Executive 
Order 12988. Specifically, this rule has been reviewed to eliminate 
errors and ambiguity and written to minimize litigation; and is written 
in clear language and contains clear legal standards.

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

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have evaluated the potential effects on federally 
recognized Indian tribes and Indian trust assets and have identified 
potential effects. The Department engaged tribal government 
representatives throughout the development of this interim final rule 
through the establishment of the negotiated rulemaking committee, as 
required by the No Child Left Behind Act of 2001.

I. Paperwork Reduction Act

    This interim final rule does not require any information to be 
collected. Therefore, the Paperwork Reduction Act is not required.

J. National Environmental Policy Act

    This interim final rule does not constitute a major Federal action 
significantly affecting the quality of the human environment.

K. Information Quality Act

    In developing this interim final rule we did not conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Pub. L. 106-554).

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

    This interim final rule is not a significant energy action under 
the definition in Executive Order 13211. A Statement of Energy Effects 
is not required.

M. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

N. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

O. Required Determinations Under the Administrative Procedure Act

    We are publishing this interim final rule with a request for 
comment without prior notice and comment, as allowed under 5 U.S.C. 
553(b)(B).
    Under section 553(b)(B), we find that prior notice and comment are 
unnecessary and would be contrary to the public interest. This rule 
codifies standards applicable to school facilities. The 2010 committee 
wrote this rule after consultation with tribes and to meet the needs of 
the Bureau-funded dormitory facilities. Delay in publishing this rule 
could lead to uncertainty about which standards are appropriate for 
heating, cooling, and lighting in residential facilities, which could 
lead to substandard living conditions, health problems, and other 
serious consequences. Delaying the rule by publication of a proposed 
rule would therefore be contrary to the public interest.
    As allowed under 5 U.S.C. 553(d)(3), the effective date of this 
rule is the date of publication in the Federal Register. Good cause for 
an immediate effective date exists because immediate availability of 
the standards that the rule requires will eliminate uncertainty about 
facility requirements and will avoid problems that could result from 
substandard facilities, as discussed above.
    We have requested comments on this interim final rule. We will 
review any comments received and, by a future publication in the 
Federal Register, address any comments received and either confirm the 
interim final rule with or without change or initiate a proposed 
rulemaking.

List of Subjects in 25 CFR Part 36

    Educational facilities, Incorporation by reference, Indians--
education, School construction.

    For the reasons given in the preamble, the Department of the 
Interior amends 25 CFR part 36 as follows:

PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF 
INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS

0
1. The authority for part 36 continues to read as follows:

    Authority:  Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 
25 U.S.C. 2901, Title I of Pub. L. 101-477.


[[Page 30891]]



0
2. Revise Sec.  36.2 to read as follows:


Sec.  36.2  Applicability.

    The national criteria for dormitory situations established under 
subpart G serve as a minimum requirement and are mandatory for all 
Bureau-operated and Indian-controlled contract schools.


0
2. Add Sec.  36.104 to read as follows:


Sec.  36.104  What are the requirements for heating, ventilation, 
cooling and lighting at dormitories?

    (a) All dormitories must be designed to meet or exceed the 
standards for heating, ventilation, cooling, and lighting set out in 
the building codes in the Bureau of Indian Affairs ``School Facilities 
Design Handbook,'' dated March 30, 2007, written and published by the 
Bureau of Indian Affairs Office of Facilities Management and 
Construction. The Director of the Federal Register has approved this 
incorporation by reference in accordance with 5 U.S.C. 552(a). To 
enforce any edition other than that specified in this section, the 
Bureau of Indian Affairs must publish notice of change in the Federal 
Register and the material must be available to the public
    (1) You may obtain a copy of the Handbook at http://www.bia.gov/cs/groups/xraca/documents/text/idc008030.pdf. You can get answers to your 
questions from the Bureau of Indian Affairs Office of Facilities 
Management and Construction at: 1011 Indian School Road NW., Suite 335, 
Albuquerque, NM 87103; email: [email protected]; Web site: http://www.bia.gov/WhoWeAre/AS-IA/OFECR/index.htm.
    (2) You may inspect the Handbook at the Department of the Interior 
Library, Main Interior Building, 1849 C Street NW., Room 1151, 
Washington, DC 20240; telephone: (202) 208-3796. It is also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) If an existing dormitory does not comply with the standards in 
paragraph (a) of this section, we will classify the discrepancy as 
``deferred capital maintenance'' for purposes of prioritizing 
correction of the discrepancy.
    (c) The Bureau must publish in the Federal Register any proposal to 
change which building codes are included in the Bureau of Indian 
Affairs ``School Facilities Design Handbook'' or any successor 
document, and allow 120 days for public comment and consultation.

    Dated: February 3, 2012.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
[FR Doc. 2012-12678 Filed 5-23-12; 8:45 a.m.]
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