[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Proposed Rules]
[Pages 43199-43202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19111]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 30

[178A2100DD/AAKC001030/A0A501010.999900 253G]


Bureau of Indian Education Standards, Assessments, and 
Accountability System Negotiated Rulemaking Committee Establishment; 
Nominations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Request for nominations and notice of intent to establish 
committee.

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SUMMARY: The U.S. Department of the Interior is announcing its intent 
to establish the Bureau of Indian Education (BIE) Standards, 
Assessments, and Accountability System Negotiated Rulemaking Committee 
(Committee) to advise the Secretary of the Interior (Secretary) through 
the BIE on a proposed rule to revise the Adequate Yearly Progress 
regulation and invite Tribes whose students attend BIE-funded schools 
operated by either the BIE or by the Tribe through a contract or grant 
who would be affected by the final rule to nominate a representative 
for membership on the Committee. The BIE also invites nominations for 
Committee members who will adequately represent the interests that are 
likely to be significantly affected by the proposed rule such as: 
Students enrolled, or parents of students enrolled at the 174 BIE-
funded schools, school teachers and administrators, Tribes, and Indian 
communities served by these schools. The BIE also solicits comments on 
the proposal to establish the Committee.

DATES: Comments regarding the intent to establish this Committee and 
nominations for Committee members must be submitted no later than 
October 16, 2017.

ADDRESSES: Send written comments to Ms. Juanita Mendoza, Bureau of 
Indian Education, by any of the following methods:
     (Preferred method) Email to: [email protected];
     Mail, hand-carry or use an overnight courier service to 
Ms. Juanita Mendoza, Bureau of Indian Education, 1849 C Street NW., 
Mail Stop 4657, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Ms. Juanita Mendoza, Bureau of Indian 
Education; telephone: (202) 208-3559.

SUPPLEMENTARY INFORMATION:

I. Background

    In 2005, BIA promulgated regulations at 25 CFR part 30 that require 
BIE to use the accountability system of the State in which a BIE-funded 
school is located. There are BIE-funded schools in 23 different States; 
and each State has its own accountability system. As a result, each 
State system produced student achievement data that cannot be directly 
compared with data from other States. This created problems for the BIE 
in identifying under-performing schools and in directing resources 
effectively.
    On November 9, 2015, BIE published a notice of intent requesting 
nominations for a negotiated rulemaking committee to recommend 
revisions to the existing regulations for BIE's accountability system 
(80 FR 69161). In that notice of intent, the BIE solicited nominations 
from Tribes whose students attend BIE-funded schools operated either by 
the 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.
    The Every Student Succeeds Act (ESSA), Pub. L. 114-95, then became 
law, requiring an update to the subject, scope, and issues that the 
Committee would address. On April 14, 2016 (81 FR 22039), BIE announced 
its intent to expand the scope of the Committee and reopened the 
comment and nomination period, requesting comments and nominations by 
May 31, 2016. The request for nominations was extended on August 17, 
2016 (81 FR 54768). On January 18, 2017 a notice of proposed 
membership, request for nomination and a request for comments was 
published (82 FR 5473).
    Taking into consideration the interests of the new Administration 
in participating in this process, the Department has decided that a new 
negotiated rulemaking process, as required by the ESEA, should begin.
    Under ESEA Section 8204(c)(2), as amended, Tribes have the 
authority to waive, in part or in whole, the definitions of standards, 
assessments, and accountability system established by the Secretary in 
accordance with this rulemaking. The BIE encourages Tribal self-
determination in Native education; and where a Tribal governing body or 
school board determines it to be appropriate, encourages the 
development of alternative standards, assessments, or accountability 
systems.
    The Committee would be charged, consistent with ESEA Section 8204, 
with developing proposed regulations for implementation of the 
Secretary's

[[Page 43200]]

responsibility to define standards, assessments, and an accountability 
system. These definitions will be implemented in the 2018-2019 school 
year. The final regulations will describe how to execute the 
Secretary's responsibility to define the standards, assessments, and an 
accountability system consistent with ESEA Section 1111, for schools 
funded by the BIE on a national, regional, or Tribal basis, as 
appropriate, taking into account the unique circumstances and needs of 
such schools and the students served by such schools. Additionally, the 
Committee will be asked to provide recommendations that encourage the 
exercise of the authority of Tribes to adopt their own standards, 
assessments, and an accountability system and also to provide 
recommendations on how BIE could best provide technical assistance 
under ESEA Section 8204(c)(3).

II. Every Student Succeeds Act (ESSA)

    The ESSA reauthorizes and amends the ESEA. ESSA Section 8007 amends 
ESEA Section 8204, and directs the Secretary of the Interior, in 
consultation with the Secretary of Education, if so requested, to use a 
negotiated rulemaking process to develop regulations for implementation 
of the Secretary of the Interior's obligation to define the standards, 
assessments, and an accountability system that will be utilized at BIE-
funded schools. The regulations, along with any necessary revisions to 
part 30 generally, will replace the existing 25 CFR part 30 and will 
define the standards, assessments, and an accountability system 
consistent with ESEA, for BIE-funded schools on a national, regional, 
or Tribal basis. The regulations will be developed in a manner that 
considers the unique circumstances and needs of such schools and the 
students served by such schools. These definitions will be implemented 
in the 2018-2019 school year.
    ESEA Section 8204 also provides that if a Tribal governing body or 
school board of a BIE-funded school determines the requirements 
established by the Secretary of the Interior are inappropriate, they 
may waive, in part or in whole, such requirements. Where such 
requirements are waived, the Tribal governing body or school board 
shall, within 60 days, submit to the Secretary of the Interior a 
proposal for alternative standards, assessments, and an accountability 
system, if applicable, consistent with ESEA Section 1111. The proposal 
must take into account the unique circumstances and needs of the school 
or schools and the students served. The proposal will be approved by 
the Secretary of the Interior and the Secretary of Education, unless 
the Secretary of Education determines that the standards, assessments, 
and accountability system do not meet the requirements of ESEA Section 
1111. Additionally, a Tribal governing body or school board of a BIE-
funded school seeking a waiver may request, and the Secretary of the 
Interior and the Secretary of Education will provide, technical 
assistance.

III. Statutory Authority

    This document is published in accordance with 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 Elementary 
and Secondary Education Act of 1965 (ESEA) (20 U.S.C. 6301 et seq.)

IV. The Committee and Its Process

    In 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, the 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, the 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 the BIE. 
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 that second Federal Register notice will be given 
an opportunity to apply or nominate another person for membership on 
the 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, 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 ESEA directs the Secretary to conduct a 
negotiated rulemaking pursuant to the NRA.
    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 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.

V. Negotiated Rulemaking Procedures

    In compliance with FACA and NRA, the BIE will use the following

[[Page 43201]]

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 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 up to 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 under 5 U.S.C. 568(c) is 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 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 representatives to serve 
on the Committee who can represent the interests of students enrolled 
at the 174 BIE-funded schools, parents of such students, school 
administrators, Tribes, and the Indian communities served by these 
schools, and who have a demonstrated ability to communicate well with 
groups about the interests they will represent. The Committee 
membership will consist of approximately 15, but not more than 25 
members in accordance with the NRA.
    Non-Federal Committee membership must:
     Include only representatives of the interests described 
above;
     Comply with the FACA.
    41 CFR 102-3.30 requires the membership of a FACA committee to be 
fairly balanced in its member in terms of the points of view 
represented and the functions to be performed. 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 
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 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, 
and consensus-building. In addition, at the first meeting, Committee 
members will make organizational decisions concerning protocols, 
scheduling, and facilitation of the Committee.

F. Interests Identified

    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 
identified the interests to be significantly affected by this new rule 
to 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.

VI. Nominations

    The BIE solicits nominations from representatives of the interests 
identified above and an alternate to serve when the representative is 
unavailable.
    Each nomination is expected to include a nomination for a primary 
representative and an alternate who can fulfill the obligations of 
membership should the primary representative be unable to attend. The 
Committee membership should reflect a diversity of interests, and 
nominees should only be of representatives and alternates who will:
     Have knowledge of school standards, assessments and 
accountability systems;
     Have relevant experience as past or present 
superintendents, principals, teachers, or school board members;
     Be able to coordinate, to the extent possible, with other 
interests who may not be represented on the Committee;
     Be able to represent one or more of the specified 
interests with the authority to embody the views of that interest, 
communicate with interested constituents, and have a clear means to 
reach agreement on behalf of the interest(s);
     Be able to negotiate effectively on behalf of the 
interest(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.
    The BIE will consider nominations for representatives only if they 
are nominated through the process identified in this Notice of Intent. 
The BIE will not consider any nominations that we receive in any other 
manner. If you submitted a nomination in response

[[Page 43202]]

to previous notices (80 FR 69161; 81 FR 22039; 81 FR 54768; 82 FR 5473) 
you must submit a new nomination package. Previous applications will 
not be considered. The BIE will not consider nominations for Federal 
representatives. Only the Secretary may nominate Federal employees to 
the Committee.
    Nominations must include the following information about each 
nominee:
    (1) A current letter from the entity representing one of the 
interest(s) identified supporting the nomination of the individual to 
serve as a 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 (if applicable), job title, major job duties, employer, 
business address, business telephone and fax numbers (and business 
email address, if applicable);
    (3) The interest(s) to be represented by the nominee (see section 
V, part F) and whether the nominee will represent other interest(s) 
related to this rulemaking; and
    (4) A brief description of how the nominee will represent the views 
of the identified interest(s), communicate with constituents, and have 
a clear means to reach agreement on behalf of the interest(s) they are 
representing.
    (5) A statement on whether the nominee is only representing one 
interest or whether the expectation is that the nominee represents a 
specific group of interests.
    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.
    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.

VII. Certification

    For the above reasons, I hereby certify that the Bureau of Indian 
Education Standards, Assessments, and Accountability System Negotiated 
Rulemaking Committee is in the public interest.

    Authority: 20 U.S.C. 6301; 5 U.S.C. 561; 5 U.S.C. Appendix 2.

    Dated: September 1, 2017.
Michael S. Black,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2017-19111 Filed 9-13-17; 8:45 am]
 BILLING CODE 4337-15-P