[Federal Register Volume 78, Number 21 (Thursday, January 31, 2013)]
[Proposed Rules]
[Pages 6770-6772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01957]

[[Page 6770]]



Bureau of Indian Affairs

25 CFR Part 30

Notice of Intent To Establish an Adequate Yearly Progress 
Negotiated Rulemaking Committee

AGENCY: Bureau of Indian Education, Interior.

ACTION: Notice of intent; request for comments or nominations.


SUMMARY: The Bureau of Indian Education (BIE) is announcing its intent 
to establish an Adequate Yearly Progress Negotiated Rulemaking 
Committee (Committee). The Committee will recommend revisions to the 
existing regulations for Adequate Yearly Progress (AYP). As required by 
the No Child Left Behind Act of 2001, the Secretary will select 
representatives of Indian tribes for the Committee from among 
individuals nominated by tribes whose students attend BIE-funded 
schools operated by either the Bureau or by the tribe through a 
contract or grant and who would be affected by a final rule. The BIE 
solicits comments on this proposal to establish the Committee, 
including comments on additional interests not identified in this 
notice of intent, and invites tribes to nominate representatives for 
membership on the Committee.

DATES: Submit nominations for Committee members or written comments on 
this notice of intent on or before March 4, 2013.

ADDRESSES: You may submit nominations for Committee members or written 
comments on this notice of intent by any of the following methods:
     Send comments or nominations to Ms. Sue Bement, Designated 
Federal Officer, Bureau of Indian Education, 1011 Indian School Road, 
NW., Suite 332, Albuquerque, New Mexico, 87104; email: 
[email protected]; Telephone: (505) 563-5274; Fax: (505) 563-5274; or
     Hand-carry comments or use an overnight courier service. 
Our courier address is Manuel Lujan Jr. Building, Building II, Suite 
332, 1011 Indian School Road NW., Albuquerque, New Mexico 87104.

FOR FURTHER INFORMATION CONTACT: Ms. Sue Bement, Designated Federal 
Officer; Telephone: (505) 563-5274; Fax: (505) 563-5281.


I. Background

    The No Child Left Behind Act of 2001 (Act) required States to use 
certain academic content standards, assessments, and a specific 
methodology for calculating the AYP of students (together, referred to 
as an ``accountability system'') to measure academic achievement. See 
20 U.S.C. 6311. The Act's amendments to the Elementary and Secondary 
Education Act (ESEA) required the Bureau of Indian Affairs (BIA) to 
promulgate regulations through negotiated rulemaking for the 
accountability system to be used in Bureau-funded schools. See 20 
U.S.C. 6316(g)(1)(A)(i); 25 U.S.C. 2017-2018.
    In 2005, the BIA promulgated such regulations. See 70 FR 22178 
(April 28, 2005). These regulations, codified at 25 CFR 30.104, require 
BIE to use the accountability system of the State in which a BIE-funded 
school is located to calculate AYP.
    BIE-funded schools are located in 23 different States; and each 
State has its own accountability system. As a result, each State system 
produces student achievement data that cannot be directly compared with 
data from other States. For BIE, comparison is necessary to identify 
under-performing schools and direct resources effectively.
    BIE had previously developed a method for comparing academic 
achievement across States despite the variances in academic standards. 
But now that some States have received flexibility waivers from the 
Department of the Education, BIE will no longer be able to use this 
method to effectively compare achievement. It is necessary, therefore, 
to revise 25 CFR part 30.
    BIE has already conducted several regional meetings on the topic of 
accountability in BIE-funded schools. Meetings were held in Oklahoma 
City, OK, on July 17, 2012; Flagstaff, AZ, on July 20, 2012; Seattle, 
WA, on July 24, 2012; and Bismarck, ND, on July 27, 2012.

II. Statutory Provisions

    The Negotiated Rulemaking Act of 1996 (NRA) (5 U.S.C. 561 et seq.); 
the Federal Advisory Committee Act (FACA) (5 U.S.C. Appendix 2); the No 
Child Left Behind Act (20 U.S.C. 2000 et seq.).

III. The Committee and Its Process

    In a negotiated rulemaking, the provisions of a proposed rule are 
developed by a committee composed of at least one representative of the 
government and representatives of the interests that will be 
significantly affected by the rule. Decisions are made by consensus, 
which means unanimous concurrence among the interests represented on 
the Committee, unless the Committee (1) agrees to define ``consensus'' 
to mean a general but not unanimous concurrence, or (2) agrees upon 
another specified definition. 5 U.S.C. 562(2)(A) and (B).
    As part of the negotiated rulemaking process, the agency has 
identified interests potentially affected by the rulemaking under 
consideration, including students enrolled at 174 BIE-funded schools, 
parents of such students, school administrators, tribes, and the Indian 
communities served by these schools. By this notice of intent, BIE is 
soliciting (1) comments on its proposal to form a negotiated rulemaking 
committee and (2) nominations for Committee members who will adequately 
represent the interests which are likely to be significantly affected 
by the proposed rule.
    Following the receipt of nominations and comments, the BIE will 
publish in the Federal Register a list of persons to represent the 
interests which are likely to be significantly affected by the rule, 
and the person or persons proposed to represent the agency. Persons who 
will be significantly affected by the proposed rule and who believe 
that their interests will not be adequately represented by any person 
specified in the abovementioned Federal Register notice will be given 
an opportunity to apply for, or nominate another person for, membership 
on the negotiated rulemaking committee to represent such interests with 
respect to the proposed rule.
    Following the second Federal Register notice and responses to it, 
the BIE expects to establish the Committee. After the Committee reaches 
consensus on the provisions of the proposed rule, as discussed in more 
detail below, the BIE will publish a proposed rule in the Federal 
    Under 5 U.S.C. 563, the head of the agency is required to determine 
that the use of the negotiated rulemaking procedure is in the public 
    In making such a determination, the agency head must consider 
certain factors. Taking these factors into account, the Secretary, 
through the authority delegated to the Assistant Secretary--Indian 
Affairs, has determined that a negotiated rulemaking is in the public 
interest because:
    1. A rule is needed. The No Child Left Behind Act, 20 U.S.C. 2000 
et seq., directs the Secretary to conduct a negotiated rulemaking 
pursuant to the NRA. The current definition of AYP creates a fragmented 
accountability system that prevents the BIE from developing and 
implementing comprehensive school reform initiatives

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in the 174 BIE-funded schools in 23 States.
    2. A limited number of identifiable interests will be significantly 
affected by the rule. 174 BIE-funded schools, the students enrolled at 
these schools, school administrators, tribes, and Indian communities 
served by these schools will be significantly affected by this review 
and the recommendations made by this Committee.
    3. There is a reasonable likelihood that the Committee can be 
convened with a balanced representation of persons who can adequately 
represent the interests discussed in item 2, above and who are willing 
to negotiate in good faith to attempt to reach a consensus on 
provisions of a proposed rule.
    4. There is a reasonable likelihood that the Committee will reach 
consensus on a proposed rule within a fixed period of time.
    5. The use of negotiated rulemaking will not unreasonably delay the 
development of a proposed rule because time limits will be placed on 
the negotiation. We anticipate that negotiation will expedite a 
proposed rule and ultimately the acceptance of a final rule.
    6. The BIE is making a commitment to ensure that the Committee has 
sufficient resources to complete its work in a timely fashion.
    7. The BIE, to the maximum extent possible and consistent with the 
legal obligations of the agency, will use the consensus report of the 
Committee as the basis for a proposed rule for public notice and 

IV. Negotiated Rulemaking Procedures

    In compliance with FACA and NRA, the BIE will use the following 
procedures and guidelines for this negotiated rulemaking. The BIE may 
modify them in response to comments received on this notice of intent 
or during the negotiation process.

A. Committee Formation

    The Committee will be formed and operated in full compliance with 
the requirements of FACA and NRA, and specifically under the guidelines 
of its charter.

B. Member Responsibilities

    The Committee is expected to meet approximately three to five 
times. The meetings will be held at various locations across Indian 
country, and will last two to three days each. The initial meeting will 
be in person; some later meetings may be held by teleconference and/or 
web-conference. The Committee's work is expected to occur over the 
course of 6-12 months.
    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 
all 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 participate in the Committee's meetings.
    Responsibility for expenses is stated under 5 U.S.C. 568(c) as 
follows: Members of a negotiated rulemaking committee shall be 
responsible for their own expenses of participation in such committee, 
except that an agency may, in accordance with section 7(d) of the 
Federal Advisory Committee Act, pay for a member's reasonable travel 
and per diem expenses, expenses to obtain technical assistance, and a 
reasonable rate of compensation, if--
    (1) Such member certifies a lack of adequate financial resources to 
participate in the Committee; and
    (2) The agency determines that such member's participation in the 
Committee is necessary to assure an adequate representation of the 
member's interest.

The BIE commits to pay the reasonable travel and per diem expenses of 
Committee members, if appropriate under the NRA and Federal travel 

C. Composition of 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 the interests they will represent. The Committee cannot 
exceed 25 members, and the BIE prefers 15.
    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 
that have students attending BIE-funded schools either operated by the 
Bureau or by the tribe through a contract or grant; and
     Mirror the proportionate share of students from the tribes 
served by the BIE-funded school system.
    The Act requires the Secretary to ensure that the various interests 
affected by the proposed report(s) or rules be represented on the 
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.

D. Administrative and Technical Support

    The BIE will provide sufficient administrative and technical 
resources for the Committee to complete its work in a timely fashion. 
BIE, with the help of the facilitator, will prepare all agendas, 
provide meeting notes, and provide a final report of any issues on 
which the Committee reaches consensus.

E. Training and Organization

    At the first meeting of the 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.

F. Interests Identified Through Consultation

    Under Section 562 of the NRA, ```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.'' We have 
consulted with BIE personnel, educators at BIE-schools, tribal 
officials, parents, teachers, administrators, and school board members 
of tribes served by BIE-funded schools. The BIE has determined that the 
interests likely to be significantly affected by this new rule include 
the 174 BIE-funded schools, the students enrolled at these schools, 
school administrators, tribes, and the Indian communities served by 
these schools. BIE is accepting comments identifying other interests 
that may be significantly affected by the final products of the 
Committee, which may include report(s) and/or proposed regulations, 
until the date listed in the DATES section of this notice of intent.

V. Request for Nominations and Comments

    The BIE solicits nominations from tribes whose students attend BIE-
funded schools operated either by the BIE or by the tribe through a 
contract or grant, to

[[Page 6772]]

nominate tribal representatives to serve on the Committee and tribal 
alternates to serve when the representative is unavailable. Based upon 
the proportionate share of students, some tribes similar in affiliation 
or geography are grouped together for one seat. It will be necessary 
for such nominating tribes either to co-nominate a single tribal 
representative to represent the multi-tribal jurisdiction or for each 
tribe in the multi-tribal jurisdiction to nominate a representative 
with the knowledge that BIE will only be able to appoint one of the 
nominees who will then be responsible for representing the entire 
multi-tribal jurisdiction on the Committee. Each nomination is expected 
to include a nomination for a representative and an alternate who can 
fulfill the obligations of membership should the representative be 
unable to attend. The Committee membership should reflect the diversity 
of tribal interests, and tribes should nominate representatives and 
alternates who will:
     Have knowledge of school assessments and accountability 
     Have relevant experience as past or present 
superintendents, principals, facility managers, teachers, or school 
board members, or possess direct experience with adequate yearly 
     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) 
     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.

VI. Submitting Nominations

    The Secretary will only consider nominees nominated through the 
process identified in this Federal Register notice. Nominations 
received in any other manner will not be considered. Nominations must 
include the following information about each nominee:
    (1) The nominee's name, tribal affiliation, job title, major job 
duties, employer, business address, business telephone and fax numbers 
(and business email address, if applicable);
    (2) The tribal interest(s) to be represented by the nominee (see 
section V of this notice of intent) 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 (which may include being a parent of a student 
attending a BIE-funded school); 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 specific 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.


    For the above reasons, I hereby certify that the Adequate Yearly 
Progress Negotiated Rulemaking Committee is in the public interest.

    Dated: January 22, 2013.
Kevin K. Washburn,
Assistant Secretary, Indian Affairs.
[FR Doc. 2013-01957 Filed 1-30-13; 8:45 am]