[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]]
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DEPARTMENT OF THE INTERIOR
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.
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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.
SUPPLEMENTARY INFORMATION:
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
Register.
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
interest.
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
[[Page 6771]]
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
comment.
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
regulations.
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
systems;
Have relevant experience as past or present
superintendents, principals, facility managers, teachers, or school
board members, or possess direct experience with adequate yearly
progress;
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.
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.
Certification
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]
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