[Federal Register Volume 80, Number 216 (Monday, November 9, 2015)]
[Proposed Rules]
[Pages 69161-69166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28379]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 30

[167 A2100DD/AAKC001030/A0A501010.999900]


Notice of Intent To Establish a Negotiated Rulemaking Committee

AGENCY:  Bureau of Indian Education, Interior.

ACTION:  Notice of intent; request for nominations for tribal 
representatives; and comments.

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SUMMARY:  The Bureau of Indian Education (BIE) is announcing its intent 
to establish an Accountability Negotiated Rulemaking Committee 
(Committee). The Committee will

[[Page 69162]]

recommend revisions to the existing regulations for BIE's 
accountability system. As required by applicable statutes, 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 BIE or by the tribe 
through a contract or grant and who would be affected by a final rule. 
The BIE also solicits comments on the 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 December 24, 2015.

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) 563-5281; or
     Hand-carry comments or use an overnight courier service to 
Manuel Lujan Jr. Building, Building II, Suite 332, 1011 Indian School 
Road NW., Suite 332, 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

    Under the Elementary and Secondary Education Act of 1965 (ESEA), 
student achievement data is used to determine whether schools are 
successfully educating their students. Under current law, this 
accountability measure is Adequate Yearly Progress (AYP). The law 
requires States to use a single accountability system for schools to 
determine whether all students, as well as individual subgroups of 
students, are making progress toward meeting State academic content 
standards. The goal, as stated in the ESEA, was to have all students 
reaching proficient levels in reading and math by 2014 as measured by 
performance on State tests. The ESEA requires the Bureau of Indian 
Affairs 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, 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.
    The 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. Regardless 
of whether AYP continues to be the accountability measure required 
under law, BIE must address this deeply fragmented accountability 
system through negotiated rulemaking to create a more cohesive 
accountability system.
    The BIE had previously developed a method for comparing academic 
achievement across States despite the variances in academic standards. 
Beginning in 2011, the U.S. Department of Education began to grant 
flexibility waivers to States for certain provisions of ESEA, which has 
complicated the method BIE uses to effectively compare achievement. It 
is necessary, therefore, to revise 25 CFR Part 30, and to receive 
recommendations from a negotiated rulemaking committee on how BIE can 
compare academic achievement across the 23 States.
    This rulemaking would not change the existing authority for tribes 
to adopt their own tribal definition of AYP. The BIE encourages tribal 
self-determination in Native education, encouraging tribes to develop 
alternative accountability systems (and definitions of AYP) and 
providing technical assistance. For example, on June 1, 2015, U.S. 
Education Secretary Arne Duncan and Interior Secretary Sally Jewell 
announced that the Miccosukee Indian School received flexibility from 
the Elementary and Secondary Education Act (ESEA) to use a definition 
of AYP that meets their students' unique academic and cultural needs. 
Local tribal communities know best what their children need, and BIE 
prioritizes tribal self-determination in Indian education. This 
rulemaking aims only to make the existing system more effective and 
efficient. It would impact only those BIE-funded schools that do not 
wish to develop alternative definitions of AYP, though the option will 
remain open to them regardless.
    In 2012, BIE conducted four regional meetings on the topic of 
accountability in BIE-funded schools. Meetings were held in Oklahoma 
City, Oklahoma, on July 17, 2012; Flagstaff, Arizona, on July 20, 2012; 
Seattle, Washington, on July 24, 2012; and Bismarck, North Dakota, on 
July 27, 2012. Transcripts of those meetings can be referenced at 
http://www.bie.edu/consultation/index.htm.
    During the four meetings, BIE received feedback from the tribes on 
the ESEA Flexibility Request and the BIE's proposed flexibility waiver. 
At the consultation sessions, BIE and the tribes discussed adopting 
Common Core standards--initially in reading, language arts, and 
mathematics--to reflect tribal values and employ a single assessment 
system for all BIE-funded schools.


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); and 
the NCLB (20 U.S.C. 2000 et seq.)


III. The Committee and Its Process

    In a negotiated rulemaking, recommended provisions of a proposed 
rule are developed by a committee composed of at least one 
representative of the Federal 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 agrees to 
define ``consensus'' to mean a general but not unanimous concurrence, 
or agrees upon another specified definition. 5 U.S.C. 562(2)(A) and 
(B).
    As part of the negotiated rulemaking process, BIE 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 that are likely to be significantly affected by the 
proposed rule.
    Following the receipt of nominations and comments, BIE will publish 
a second notice in the Federal Register with a list of persons to 
represent the interests that are likely to be significantly affected by 
the rule, and the person or persons proposed to represent BIE. Persons 
who will be significantly affected by the proposed rule and who believe 
that their interests will not be adequately represented by

[[Page 69163]]

any person specified in that second Federal Register notice will be 
given an opportunity to apply 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, 
BIE expects to establish the Committee. After the Committee reaches 
consensus on the recommended provisions of the proposed rule, as 
discussed in more detail below, 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 ESEA 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 in the 174 BIE-funded schools with academic programs in 23 
States.
    2. A limited number of identifiable interests will be significantly 
affected by the rule. The 174 BIE-funded schools, students enrolled at 
these schools, school teachers and 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 these negotiations 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, 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. Membership Responsibility

    The Committee is expected to meet approximately 3-5 times. The 
meetings will be held at various locations across Indian Country, and 
will last 2-3 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. 
However, the Committee may continue its work for a duration of two 
years.
    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 FACA, 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 members participation in the 
Committee is necessary to assure an adequate representation of the 
members 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 submitted by Tribes 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 BIE prefers 15.
    Tribal Committee membership must:
     Include only representatives of Tribes served by BIE-
funded schools;
     Be selected from among individuals nominated by the Tribes 
that have students attending BIE-funded schools;
     Reflect the proportionate share of students from Tribes 
served by the BIE-funded school system; and
     Comply with the FACA
    Section 2018 of Title 25 also 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. Federally registered lobbyists are ineligible to serve on all 
FACA and non-FACA boards, committees, or councils in an individual 
capacity. The term ``individual capacity'' refers to individuals who 
are appointed to exercise their own individual best judgment on behalf 
of the government, such as when they are designated Special Government 
Employees, rather than being appointed to represent a particular 
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. 
The BIE, with the help of the facilitator, will prepare all

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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, interests-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.'' The BIE has 
consulted with BIE personnel and educators at BIE-funded schools. 
Through these and previous consultations, such as those conducted in 
2012 for an Elementary and Secondary Education Act Flexibility Waiver 
Request, BIE has identified interests to be significantly affected by 
this new rule that include students enrolled at 174 BIE-funded schools, 
parents of such students, school administrators, tribes, and the Indian 
communities served by these schools. The 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 BIE 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. 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 be able to 
appoint only one of the nominees who will then be responsible for 
representing the entire multi-tribal jurisdiction on the Committee. 
(See chart below for jurisdictions.)

----------------------------------------------------------------------------------------------------------------
                                                   Student count    Percent of
                     Tribes                         school year    total student    % Times 15       Suggested
                                                     2013-2014         count        seats total        seats
----------------------------------------------------------------------------------------------------------------
Navajo Nation Tuba City Agency Western (AZ).....           3,727
Navajo Nation Crown Point Agency Eastern (NM)...           3,642
Navajo Nation Chinle Agency (AZ)................           3,216
Navajo Nation Fort Defiance Agency (AZ).........           2,437
Navajo Nation Shiprock Agency (AZ)..............           1,870
                                                 ---------------------------------------------------------------
    Total Navajo Nation.........................          14,892           32.70            4.91               5
----------------------------------------------------------------------------------------------------------------
Oglala Sioux Tribe of the Pine Ridge                       2,994
 Reservation(SD)................................
Cheyenne River Sioux (SD).......................           1,280
Rosebud Sioux Tribe (SD)........................             896
Standing Rock Sioux Tribe (ND)..................             989
Sisseton-Wahpeton Sioux of Lake Traverse Res.                797
 (SD)...........................................
Spirit Lake Tribe (Devils Lake Sioux Tribe) (ND)             615
                                                 ---------------------------------------------------------------
    Total Sioux Tribes..........................           7,571           16.63            2.49               2
----------------------------------------------------------------------------------------------------------------
The Hopi Tribe (AZ).............................           1,465
Pueblo of Acoma.................................             251
Pueblo of Chochiti..............................              23
Pueblo of Isleta................................             175
Pueblo of Jemez.................................             165
Pueblo of Laguna................................             386
Pueblo of Nambe.................................              12
Pueblo of Picuris...............................               5
Pueblo of Pojoaque..............................               5
Pueblo of San Felipe............................             447
Pueblo of San Ildefonso.........................              38
Pueblo of San Juan..............................             171
Pueblo of Sandia................................               2
Pueblo of Santa Ana.............................               7
Pueblo of Santa Clara...........................             134
Pueblo of Santo Domingo.........................             210
Pueblo of Taos..................................             151
Pueblo of Tesuque...............................              43
Pueblo of Zia...................................              84
                                                 ---------------------------------------------------------------
    Total Hopi and Pueblo Tribes................           3,774            8.29            1.24               1
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Bad River Band of the Lake Superior Tribe (WI)..              10
Bay Mills (MI)..................................              11
Chippewa-Cree (MT)..............................              24
Grand Traverse Band of Ottawa & Chippewa (MI)...               4
Keweenaw Bay of L'Anse and Ontonagon of Chippewa               1
 (MI)...........................................
Lac Courte Oreilles of Lake Superior Chippewa                227
 (WI)...........................................

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Lac du Flambeau of Lake Superior Chippewa (WI)..              13
Minnesota Chippewa Bois Forte Band (Nett Lake)..              18
Minnesota Chippewa Fond du Lac Band.............             167
Minnesota Chippewa Leech Lake Band..............             143
Minnesota Chippewa Mille Lacs Band..............             207
Minnesota Chippewa Red Lake of Chippewa Indians.              75
Minnesota Chippewa Tribe, MN--6 reservations....              17
Minnesota Chippewa White Earth Band.............             146
Red Cliff Band of Lake Superior Chippewa Indians              11
 (WI)...........................................
Saginaw Chippewa (MI)...........................               4
Sault Ste. Marie Tribe of Chippewa Indians (MI).             285
Sokaogon Chippewa of Mole Lake Band (Chippewa)                 3
 (WI)...........................................
St. Croix Chippewa Indians (WI).................              12
Turtle Mountain Band of Chippewa Indians (ND)...           2,089
                                                 ---------------------------------------------------------------
    Total Chippewa Tribes.......................           3,467            7.61            1.14               1
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Gila River......................................           1,094
White Mountain Apache of Fort Apache............             975
Tohono O'odham Nation...........................             924
Mescalero Apache................................             549
                                                 ---------------------------------------------------------------
    Total.......................................           3,542            7.78            1.17               1
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Mississippi Band of Choctaw Indians (MS)........           2,168
Eastern Band of Cherokee Indians (NC)...........           1,040
                                                 ---------------------------------------------------------------
    Total.......................................           3,208            7.04            1.06               1
                                                 ---------------------------------------------------------------
    Total Other Tribes..........................          12,492           27.43            4.11               4
                                                 ===============================================================
        Total 2013-2014 Student Count...........          45,537
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Federal Government--Committee Membership........            Designated Federal Officer                         1
                                                              Office of the Solicitor                          1
                                                            Bureau of Indian Education                         1
                                                              Department of Education                          1
----------------------------------------------------------------------------------------------------------------
    Total Tribal Committee Members..............  ..............  ..............  ..............              15
                                                                                 -------------------------------
    Total Federal Committee Members.............  ..............  ..............  ..............               4
                                                                                 ===============================
    TOTAL AYP Negotiated Rulemaking Committee...  ..............  ..............  ..............              19
----------------------------------------------------------------------------------------------------------------

    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 also 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, teachers, or school board members, or 
possess direct experience with AYP;
     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

    This notice was previously published in the Federal Register on 
January 31, 2013. The evaluation of nominations received as a result of 
the previous notice were conducted and validated for one year, expiring 
January 31, 2014. Representatives who were previously nominated would 
need to be re-nominated in response to this notice. 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) A letter from the Tribe supporting the nomination of the 
individual to serve as a tribal representative for the Committee;
    (2) A resume reflecting the nominee's qualifications and experience 
in Indian education; resume to include 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);
    (3) The tribal interest(s) to be represented by the nominee (see 
Section IV, Part F of this notice of intent) and whether the nominee 
will represent other interest(s) related to this rulemaking, as the 
tribe may designate; and
    (4) A brief description of how the nominee will represent tribal 
views,

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communicate with tribal constituents, and have a clear means to reach 
agreement on behalf of the tribe(s) they are representing.
    Additionally, a statement on 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: October 29, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
 [FR Doc. 2015-28379 Filed 11-6-15; 8:45 am]
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