No Child Left Behind Act of 2001, 63008-63011 [E8-25190]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 63008-63011]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25190]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


No Child Left Behind Act of 2001

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of intent to form a negotiated rulemaking committee; 
request for nominations for tribal representatives for No Child Left 
Behind Negotiated Rulemaking Committee membership.

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SUMMARY: The Secretary of the Interior is announcing the Department's 
intent to form a negotiated rulemaking committee to develop 
recommendations for proposed regulations regarding Bureau of Indian 
Education (BIE)-funded school facilities under the No Child Left Behind 
Act of 2001. As required by the No Child Left Behind Act, the Secretary 
will select representatives of Indian tribes for the committee from 
among individuals nominated by tribes whose students attend BIE-funded 
schools either operated by the bureau or by the tribe through a 
contract or grant. To the maximum extent possible, the proportional 
representation of tribes on the committee will reflect the 
proportionate share of students from tribes served by the BIE-funded 
school system. In addition, the Secretary will consider the balance of 
representation with regard to geographical location, size, and type of 
school and facility, as well as the interests of parents, teachers, 
administrators, and school board members, in selecting tribal committee 
representatives.
    As required in the NCLB Act, the committee shall prepare and submit 
to the Secretary of the Interior a report or reports setting out:
     A method for creating a catalog of school facilities;
     The school replacement and new construction needs of the 
interested parties, and a formula for the equitable distribution of 
funds to address those needs;
     The major and minor renovation needs of the interested 
parties, and a formula for the equitable distribution of funds to 
address such needs; and
     Facilities standards for home-living (dormitory) 
situations.

DATES: Nominations from tribes for membership in the negotiated 
rulemaking committee and comments on the establishment of this 
committee, including additional interests other than those identified 
in this notice, must be postmarked or faxed no later than December 8, 
2008.

ADDRESSES: Send nominations and comments to the Designated Federal 
Official, at the following address: Michele F. Singer, Director, Office 
of Regulatory Management, Office of the Assistant Secretary--Indian 
Affairs, 1001 Indian School Road, NW., Suite 312, Albuquerque, NM 
87104. Or fax to (505) 563-3811.

FOR FURTHER INFORMATION CONTACT: Michele F. Singer, Designated Federal 
Official. Telephone: (505) 563-3805. Fax: (505) 563-3811.

SUPPLEMENTARY INFORMATION: 
I. Introduction
II. Background
III. The Concept of Negotiated Rulemaking
IV. Facilitation
V. The No Child Left Behind Negotiated Rulemaking Committee
    A. Purpose of the Committee
    B. Committee Member Responsibilities
    C. Composition of the Committee
    D. Administrative and Technical Support
    E. Training and Organization
    F. Interests Identified Through Consultation
VI. Request for Nominations
VII. Submitting Nominations

I. Introduction

    The purpose of the No Child Left Behind Negotiated Rulemaking 
Committee is to serve as an advisory committee under the Federal 
Advisory Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) 
to provide recommendations to the Secretary of the Interior for 
proposed report(s) under the No Child Left Behind Act (Pub. L. 107-110, 
codified at 25 U.S.C. 2001 et seq.). The objectives of the committee 
are to represent the interests that will be significantly affected by 
the final report or regulations, to negotiate in good faith, and to 
reach consensus, where possible, on recommendations to the Secretary 
for the report or proposed regulations.
    The NCLB directs the Secretary to conduct a negotiated rulemaking 
pursuant to the NRA. The NRA requires an agency head to give 
consideration to seven factors when determining whether a negotiate 
rulemaking is appropriate, specifically, whether:
    (1) There is a need for a rule;
    (2) There are a limited number of identifiable interests that will 
be significantly affected by the rule;
    (3) There is a reasonable likelihood that a committee can be 
convened with a balanced representation of persons who--
    (A) Can adequately represent the interests identified under 
paragraph (2); and
    (B) Are willing to negotiate in good faith to reach a consensus on 
the proposed rule;
    (4) There is a reasonable likelihood that a committee will reach a 
consensus on the proposed rule within a fixed period of time;
    (5) The negotiated rulemaking procedure will not unreasonably delay 
the notice of proposed rulemaking and the issuance of the final rule;
    (6) The agency has adequate resources and is willing to commit such 
resources, including technical assistance, to the committee; and
    (7) The agency, to the maximum extent possible consistent with the 
legal obligations of the agency, will use the consensus of the 
committee with respect to the proposed rule as the basis for the rule 
proposed by the agency for notice and comment.
    Upon reviewing the analysis of these seven considerations set out 
in the convening report, the Secretary, through the authority delegated 
to George Skibine, Acting Deputy Assistant Secretary for Policy and 
Economic Development--Indian Affairs, has determined that a negotiated 
rulemaking is appropriate.

II. Background

    In the fall of 2006, the Department sought assistance with this 
effort from the U.S. Institute for Environmental Conflict Resolution 
(U.S. Institute), an

[[Page 63009]]

independent impartial government entity with expertise in the 
alternative dispute resolution process. The U.S. Institute's statutory 
authority is the Environmental Policy and Conflict Resolution Act of 
1998 (Pub. L. 105-156, codified at 20 U.S.C. 5601 et seq.). (For more 
information on the U.S. Institute, please visit https://www.ecr.gov.) 
The U.S. Institute conducted a convening assessment and contracted with 
an independent, impartial convening team, the Consensus Building 
Institute (CBI), to carry out interviews and prepare a draft convening 
report. Pursuant to the mandates of the No Child Left Behind Act, the 
topics covered in CBI's interviews were: Methods used to catalog school 
facilities, formulas for prioritizing and funding school replacement 
construction and new construction, and formulas for prioritizing and 
funding school renovation and repair. To understand the range of 
perspectives on or interests in these topics, the convening team 
conducted confidential interviews with tribal officials or their 
designees, representatives of BIE-operated or tribally controlled 
schools, and others with an interest in BIE-funded school facilities 
construction. The team also conducted two focus group sessions at the 
July 2007 BIE's first National Partnership Conference, organized by the 
National Indian School Board Association. Altogether, the team spoke 
with 198 individuals, representing some 99 different schools. In its 
final report, CBI provided recommendations to assign committee seats 
according to the Congressional mandate for proportionality using 
student enrollment figures from 2006 and also suggested that seats be 
allocated to other tribes and tribal entities to maximize 
representation. The Final Convening Report prepared by CBI was released 
on March 5, 2008, and can be accessed at https://ecr.gov/pdf/BIA_
FinalConvRpt200803.pdf;
    The No Child Left Behind Act requires the Secretary to establish a 
negotiated rulemaking committee to issue reports to the Secretary 
relating to several specific areas of Indian education (see 25 U.S.C. 
2018). In addition, the Act requires the Secretary to:
     Form the negotiated rulemaking committee under the NRA and 
FACA to negotiate and develop recommendations for certain reports and 
proposed regulations;
     Convene regional meetings, prior to establishing the 
negotiated rulemaking committee, to consult with personnel of the BIE, 
educators at BIE-funded schools, and tribal officials, parents, 
teachers, administrators, and school board members of tribes to provide 
guidance to the Secretary;
     Reflect the unique government-to-government relationship 
between Indian tribes and the United States in accordance with 
Executive Order 13175 dated November 6, 2000, in establishing a 
negotiated rulemaking committee;
     Ensure that the membership of the committee includes only 
representatives of the Federal Government and of tribes served by BIE-
funded schools;
     Select the tribal representatives for the committee from 
among individuals nominated by the tribes; and
     Ensure, to the maximum extent possible, that the tribal 
membership on the committee reflects the proportionate share of 
students from tribes served by the BIE-funded school system. (To access 
the recommended tribal representative membership on the committee 
reflected by the proportionate share from tribes served by the BIE-
funded school system, please refer to the Final Convening Report 
prepared by CBI at https://ecr.gov/pdf/BIA_FinalConvRpt200803.pdf.)

III. The Concept of Negotiated Rulemaking

    The negotiated rulemaking process is fundamentally different from 
the usual process for proposed regulations. Most proposed regulations 
are drafted by a Federal agency without public participation and are 
then published for public comment. Affected parties submit comments 
supporting their positions during the public comment period without 
communicating with other affected parties. Under the negotiated 
rulemaking process, an advisory committee of representatives of the 
interests that will be significantly affected by the final rule 
negotiates the provisions of the proposed regulations with the agency. 
Negotiated rulemaking allows the Federal agency and the affected 
interests represented on the committee to discuss possible approaches 
to various issues and to negotiate the content of the regulations 
before proposed regulations are published. It also allows the affected 
parties to share information, knowledge, expertise, and technical 
abilities and to resolve their concerns about the regulations before 
publication.
    The key principles of negotiated rulemaking are that agreement is 
by consensus of all the interests and that no one interest or group 
controls or dominates the process. The NRA defines consensus as the 
unanimous concurrence among interests represented on a negotiated 
rulemaking committee, unless the committee agrees to define such term 
to mean a general but not unanimous concurrence or agrees upon another 
specified definition. The agency head, to the maximum extent possible 
consistent with the agency's legal obligations, uses the consensus of 
the advisory committee as the basis for proposed regulations.

IV. Facilitation

    Experience of various Federal agencies in negotiated rulemaking has 
demonstrated that using a trained neutral to facilitate the process 
will assist all parties during negotiations to identify their real 
interest, evaluate their positions, communicate effectively, find 
common ground, and reach consensus where possible. The Secretary is 
using the facilitation of CBI (contractor) through the U.S. Institute 
for Environmental Conflict Resolution to assist with convening and 
facilitating the first committee meeting. With the approval of the 
committee, the contractor will facilitate the subsequent committee 
meetings and provide other services as outlined in the NRA.
    The facilitation team will be available to assist tribes or groups 
of tribes in selecting nominees who can meet the nomination criteria 
and represent the interests of multiple tribes and schools. For such 
assistance, Tribes may contact Sarah Palmer, Senior Program, Manager, 
U.S. Institute for Environmental Conflict Resolution, 130 South Scott 
Avenue, Tucson, AZ 85701, Direct Telephone: (520) 901-8556 E-mail: 
palmer@ecr.gov. Web site: www.ecr.gov.

V. The No Child Left Behind Negotiated Rulemaking Committee

    As required by the Act, the No Child Left Behind Negotiated 
Rulemaking Committee will be formed and will operate under the NRA and 
FACA.

A. Purpose of the Committee

    As required in the NCLB Act, the committee shall prepare and submit 
to the Secretary of the Interior a report or reports setting out:
     A method for creating a catalog of school facilities that 
takes into consideration 25 U.S.C. 2005(a)(5)(A)(i)(I)-(V);
     The school replacement and new construction needs of the 
interested parties, and a formula for the equitable distribution of 
funds to address those needs, based on the requirements of 25 U.S.C. 
2005(a)(5)(A)(ii);
     The major and minor renovation needs of the interested 
parties, and a formula for the equitable distribution of funds to 
address such needs, based on

[[Page 63010]]

the requirements of 25 U.S.C. 2005(a)(5)(A)(iii); and
     Facilities standards for home-living (dormitory) 
situations, based on the requirements of 25 U.S.C. 2002(a)(1).

B. Committee Member Responsibilities

    The Committee is expected to meet approximately five times. The 
meetings will be held at various locations across Indian country, and 
will last two to three days each. Committee members will also be 
expected to participate in at least one of several regional 
consultations. The Committee's work is expected to occur over the 
course of 12-18 months.
    Committee members will not receive pay for their membership, but 
will be compensated for travel and per diem expenses while performing 
official committee business, consistent with the provisions of 5 U.S.C. 
568(c) and Federal travel regulations. The neutral convener will have 
resources available to fund travel and/or expenses for additional 
caucusing efforts. Alternate members will not be permitted to represent 
those individuals appointed by the Secretary without prior written 
agreement with the Department. An appointed committee member may be 
removed and replaced if that committee member fails to attend two 
consecutive meetings or fails to attend a total of three committee 
meetings. The resulting vacancy would be filled in the same manner as 
the original appointment was made.
    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 
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 fully participate in the committee's meetings.

C. Composition of the 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 interests they will represent.
    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 who 
have students attending BIE-funded schools either operated by the 
bureau or by the tribe through a contract or grant;
     Mirror the proportionate share of students from the tribes 
served by the BIE-funded school system; and
     Reflect the interests identified in comments submitted to 
the Department in response to the Federal Register notices at 72 FR 
59556 and 72 FR 72391, or other interests identified in response to 
this notice.
    The Act requires the Secretary to ensure that the various interests 
affected by the proposed report, reports or rules be represented on the 
negotiated rulemaking 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.
    If nominations received in response to this notice do not 
adequately meet the statutory requirements for tribal committee 
membership, or do not represent the interests that will be 
significantly affected by the regulations, the Secretary may add 
representatives of his own choosing. The Secretary's decisions 
regarding the addition of representatives will be based on: meeting the 
requirements of the Act; achieving a balanced committee; and assessing 
whether an interest will be affected significantly by the final rule, 
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 BIA Office of Facilities Management and Construction (OFMC) 
will provide technical support for the committee. A Project Management 
Officer (PMO) will arrange meeting sites and accommodations, ensure 
adequate logistical support (equipment, personnel, etc.) at committee 
meetings, provide committee members with all relevant information, 
distribute written materials, ensure timely reimbursement of authorized 
expenses for committee members, maintain records of the committee's 
work, and support the committee as otherwise required. OFMC personnel 
will provide technical support on various school construction and 
related issues as needed.

E. Training and Organization

    At the first meeting of the No Child Left Behind Negotiated 
Rulemaking 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. All committee members must attend 
the first meeting and all subsequent meetings.

F. Interests Identified Through Consultation

    Under Section 562 of the NRA, ``interest'' is defined as follows: 
`` `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.'' Through interviews with BIE personnel, 
educators at Bureau schools, and tribal officials, parents, teachers, 
administrators, and school board members of tribes served by BIE-funded 
schools, and through written comments, the interests detailed in 
Section VI were identified.
    There may be other interests not yet identified that will be 
significantly affected by the final report, reports, or regulations. 
The Department is accepting comments until the date listed in the DATES 
section of this notice, identifying other interests that may be 
significantly affected by the final products of the committee, which 
may include report(s) and/or proposed regulations.

VI. Request for Nominations

    Under the requirements stated in the Background section, the 
Secretary invites tribes whose students attend BIE-funded schools 
either operated by the Bureau 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. With 
the use of the proportionate share of students, some tribes similar in 
affiliation or geography are grouped together for one seat. There will 
be a need for nominating tribes to either agree to nominate and thus 
share a representative across tribal-jurisdictions or each at least 
have the opportunity to nominate a member for that particular seat. 
Each nomination is expected to include a nomination for a 
representative and an alternate who can fulfill the obligations of 
membership

[[Page 63011]]

should the representative be unable to attend. Because committee 
membership should reflect the diversity of tribal interests, 
representatives of tribal and tribally operated schools should nominate 
representatives and alternates who will:
     Have knowledge of school facilities and their repair, 
renovation, and construction (this may include knowledge and skills of 
construction project management, school facilities operation and 
management, construction cost estimation, education program space 
needs, budgeting and appropriation, engineering);
     Have relevant experience as past or present 
superintendents, principals, facility managers, teachers, or school 
board members or possess direct experience with school construction 
projects;
     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.
    In addition, in order for tribes and schools with too few students 
to be represented under the proportional membership computation, the 
Secretary invites nominations from the following parties who would be 
affected by the final products of the committee may include report(s) 
and/or proposed regulations:
     Tribes served by BIE-funded schools not represented by the 
tribes allocated seats according to share of student enrollment, 
(please refer to the Final Convening Report prepared by CBI, p.38 at 
https://ecr.gov/pdf/BIA_FinalConvRpt200803.pdf);
     Tribes who will help to increase the geographic diversity 
of representation on the committee;
     Representatives who will help to increase the diversity of 
types of schools represented (e.g., off-reservation boarding schools, 
dorms, and schools serving multiple tribes);
     Representatives who might be nominated by multiple tribes 
or regional tribal associations and have ability to coordinate and 
represent a coalition or group of like-minded tribes and schools; and
     Representatives of regional or national Indian education 
organizations. Nominees of these interests, like the proportionate-
share nominees, must meet the criteria of this section.

VII. Submitting Nominations

    The Secretary will consider only nominations for tribal committee 
representatives nominated through the process identified in this 
Federal Register notice. Nominations received in any other manner or 
for Federal representatives will not be considered. Only the Secretary 
may appoint Federal employees to the committee.
    Nominations must include the following information about each 
tribal committee member nominee:
    (1) The nominee's name, tribal affiliation, job title, major job 
duties, employer, business address, business telephone and fax numbers 
(and business e-mail address, if applicable);
    (2) The tribal interest(s) to be represented by the nominee (see 
section V of this notice) 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 (including being a parent of a student attending a 
BIE-funded school) and experience in any phase of school facility 
construction (including master planning, project planning, design, 
construction, and facility management), to adequately represent the 
interest(s) identified in (2) above; 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 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. Nominations and comments received 
will be available for inspection at the address listed above from 8 
a.m. to 4 p.m., Monday through Friday, except Federal holidays.

    Dated: October 14, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development--
Indian Affairs.
 [FR Doc. E8-25190 Filed 10-21-08; 8:45 am]
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