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Proposed Rule

Negotiated Rulemaking, No Child Left Behind Act of 2001, Public Law 107-110

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Bureau of Indian Affairs, Interior.


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


The Secretary of the Interior is announcing the Department's intent to form a Negotiated Rulemaking Committee to develop recommendations for proposed regulations under the No Child Left Behind Act of 2001. The Secretary will select tribal representatives for the committee from among individuals nominated by the representatives of the tribal (contract and grant schools) and tribally operated schools pursuant to this notice. As required by the No Child Left Behind Act, tribal committee representatives selected will, to the maximum extent possible, proportionately reflect students from tribes served by the Bureau of Indian Affairs-funded school system. In addition, the Secretary will consider geographical location, size, and type of school and facility and interests of parents, teachers, administrators, and school board members in selecting tribal committee representatives.


Nominations for tribal committee membership and comments on the establishment of this Committee, including additional interests other than those identified in this notice, must be postmarked or faxed by January 9, 2003.


Send nominations and comments to No Child Left Behind Negotiated Rulemaking Committee Nominations, c/o Starr Penland, Office of Indian Education Programs, Bureau of Indian Affairs, U.S. Department of the Interior, MS 3512-MIB, 1849 C Street, NW., Washington, DC 20240, or FAX to Starr Penland at 202-273-0030.

Nominations and comments received will be available for inspection at the address listed above from 7:45 a.m. to 4 p.m., Monday through Friday, except Federal holidays.

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Catherine Freels, Designated Federal Official, No Child Left Behind Negotiated Rulemaking, U.S. Department of the Interior, Office of the Regional Solicitor, Southwest Region, 505 Marquette Avenue, NW., Albuquerque, New Mexico, 87102, telephone 505-248-5605, FAX 505-248-5623.

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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 regulations under Public Law 107-110 for which Congress has authorized rulemaking. (Sections 1116(g), 1124, 1127, sections 1130, 1136, and 1043.) The objectives of the committee are to represent the interests that will be significantly affected by the final regulations, to negotiate in good faith, and to reach consensus, where possible, on recommendations to the Secretary for the proposed regulations.

In order to proceed with negotiated rulemaking, the NRA requires that the Secretary make certain findings when establishing a negotiated rulemaking committee. In addition to finding that there is a need for negotiated rulemaking under the Act, the Secretary has determined that there are a limited number of identifiable interests that will be significantly affected by the rule; there is a reasonable likelihood that a committee can be convened of persons who will adequately represent those interests which would be significantly affected by the rule and who are willing to negotiate in good faith to reach a consensus on the proposed rule; the negotiated rulemaking procedure will not unreasonably delay the notice of proposed rulemaking and the issuance of the final rule; and the Department has adequate resources and is willing to commit such resources, including technical assistance, to the rulemaking committee.

II. Background

Public Law 107-110, section 1138 the No Child Left Behind Act of 2001, requires the Secretary to issue proposed regulations relating to several specific areas of Indian education by June 2003. The Act requires the Secretary to develop these regulations using the negotiated rulemaking process. It also requires the following:

1. The Secretary must form the negotiated rulemaking committee under the Negotiated Rulemaking Act (NRA) and the Federal Advisory Committee Act (FACA) to negotiate and develop recommendations for proposed regulations.

2. Before establishing a negotiated rulemaking committee, the Secretary must conduct regional consultation meetings to obtain guidance on the content of the proposed regulations.

3. In establishing a negotiated rulemaking committee, the Secretary must reflect the unique government-to-government relationship between Indian tribes and the United States.

4. The Secretary must ensure that the committee is comprised only of representatives of the Federal Government and of Indian tribes; select the tribal representatives of the committee from among individuals nominated by the representatives of the tribal and tribally operated schools; and ensure, to the maximum extent possible, that the tribal representative membership on the committee reflects the proportionate share of students from tribes served by the Bureau-funded school system. (The table at the end of this notice shows tribal enrollment in Bureau-funded schools. For each of the 20 tribes with the largest enrollment, the list shows the number of students and the percentage of total enrollment that the tribe represents. For the remaining tribes, the table contains the aggregate enrollment and percentage. We will use these percentages in determining proportional representation.)

The Act specifies six sections that are authorized to be negotiated to produce recommendations for a proposed rule by the June 2003 deadline:

1. Section 1116(g), which covers defining adequate yearly progress which is the essential measurement for determining that schools are providing quality education;

2. Section 1124, which covers establishing separate geographic attendance areas for each Bureau-funded school;Start Printed Page 75829

3. Section 1127, which covers establishing a formula for determining the minimum annual amount of funds necessary to fund each Bureau-funded school;

4. Section 1130, which covers establishing a system for the direct funding and support of all Bureau-funded schools under the formula established under section 1127;

5. Section 1136, which covers establishing guidelines to ensure the constitutional and civil rights of Indian students regarding the right to privacy, freedom of religion and expression, and due process in connection with disciplinary actions (suspension and expulsion); and

6. Section 1043, which covers establishing a method for administration of grants under the Tribally Controlled Schools Act of 1988. These sections of the Act are available on the OIEP web site at

III. The Concept of Negotiated Rulemaking

The negotiated rulemaking process is fundamentally different from the usual development process for proposed rules. 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 rule 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 a proposed rule is published. It also allows the affected parties to share information, knowledge, expertise, and technical abilities and to resolve their concerns about the rule 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 itself unanimously agrees to use a different definition. The Secretary, to the maximum extent possible consistent with the Department's legal obligations, will use the consensus of the advisory committee as the basis for the proposed regulations.

A. Facilitation

Experience of various Federal agencies in negotiated rulemaking has demonstrated that using a trained, third-party neutral to facilitate the process will assist all parties during negotiations to identify their real interests, reevaluate their positions, communicate effectively, find common ground, and reach consensus where possible. The Secretary has contracted with Lucy Moore Associates of Santa Fe, New Mexico to assist with the regional consultation meetings prior to the formation of the committee, to provide a report of issues and interests identified at those meetings, and to provide facilitation and training at the first committee meeting. With the approval of the committee, Lucy Moore Associates will facilitate the subsequent committee meetings and provide other services as outlined in the NRA. Lucy Moore has 20 years experience as a mediator and facilitator, working on a wide variety of issues with tribal governments and communities.

B. Establishing the No Child Left Behind Negotiated Rulemaking Committee

The No Child Left Behind Negotiated Rulemaking Committee is an advisory committee under FACA. As required by the Act, the committee will be formed and will operate under the NRA and FACA. The purpose of the negotiated rulemaking committee is to negotiate and recommend to the Secretary the provisions of the proposed regulations. 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. Alternates will not be reimbursed for travel and per diem unless they are representing a committee member who is unable to attend a meeting. Alternate members will not be permitted to represent those individuals appointed by the Secretary without prior written agreement with the Department.

Because of the tight deadline for publishing proposed rules, 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 which will be held at least monthly in the regions which have Bureau-funded schools, work on committee work groups between committee meetings, and negotiate in good faith toward a consensus on issues before the committee. The Secretary is seeking tribal committee representative nominees with demonstrated ability to communicate well with groups or interests they will represent. Because of the complexity of the issues the committee will consider and the need for continuity, the Secretary reserves the right to replace any member who is unable to fully participate in the committee's meetings.

Tribal committee membership must reflect:

  • The statutory requirements under the Act for tribal representation of tribes served by Bureau-funded schools; selection from among individuals nominated by representatives of the tribal and tribally operated schools; and tribal committee membership reflecting a proportionate share of students from the tribes served by the Bureau-funded school system; and
  • The interests identified through the regional consultation meetings held in August and September 2002, or in comments submitted to the Department by September 15, 2002, pursuant to the Federal Register notice at 67 FR 47827 (July 22, 2002) or other interests identified in response to this notice.

The Secretary's decision on the composition of the committee will be based on the requirements of the Act, achieving a balanced committee, 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.

C. Administrative and Technical Support

The Office of Indian Education Programs will provide technical support for the committee. A Project Management Office (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. OIEP personnel will provide technical support on various Indian Education issues as needed.

D. Training

At the first meeting of the No Child Left Behind Negotiated Rulemaking Committee, a neutral third-party facilitator will provide training on negotiated rulemaking, interest-based Start Printed Page 75830negotiations, 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.

IV. 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 14 regional consultation meetings for OIEP personnel, educators at Bureau schools, and tribal officials, parents, teachers, administrators, and school board members of tribes served by Bureau-funded schools and through written comments, the following interests were identified: Teachers; parents; school board members; students; school staff; school administrators; state departments of education; public school representatives; and federal decision-makers. In addition, it was recommended that different types and sizes and geographic representation of schools should be represented in the appointments from the interest groups above, including: Grant/tribally-controlled schools; off-reservation boarding schools; small schools; and alternative schools. In addition, at each regional consultation meeting there were numerous oral comments giving guidance on proposed regulations.

There may be other interests not yet identified that will be significantly affected by the final rule. The Department is accepting comments until January 9, 2003, identifying other interests that may be significantly affected by the final regulations.

V. Request for Nominations

Under the requirements stated in the Background section, the Secretary invites representatives of tribal (contract and grant schools) and tribally operated schools to nominate tribal representatives to serve on the committee and tribal alternates to serve if the representative is unavailable. Because committee membership should reflect the diversity of tribal interests, representatives of tribal (contract and grant schools) and tribally operated schools should nominate representatives who will:

1. Represent the interests of students, parents, teachers, school board members, and school administrators they are nominated to represent;

2. Reflect the spectrum of grant/tribally-controlled schools, off-reservation boarding schools, various size schools, and alternative schools in the geographic regions;

3. Communicate with the constituencies they represent; and

4. Participate fully in the committee's activities.

VI. 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 nominate Federal employees to the committee.

Nominations must include the following information about each nominee for tribal committee member:

1. the nominee's name, business address, telephone and fax number (and e-mail address, if applicable);

2. The tribal interest(s) to be represented by the nominee (teacher, parent, school administrators, or school board member) and whether the nominee will represent the interest of grant/tribally-controlled schools, off-reservation boarding schools, small or large school or alternative schools in a specific geographic region (see section IV of this notice) or other interest related to this rulemaking, as the tribe may designated; and

3. A resume´ reflecting the nominee's qualifications and experience in Indian education (including being a parent of a student attending a Bureau-funded school) to adequately represent the interest(s) identified in (2) above.

To be considered, nominations must be received by the close of business on January 9, 2003, at the location indicated in the ADDRESSES section.

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Dated: December 3, 2002.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.

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Proportionate share is reflected in the percentages of students from the tribes served by Bureau-funded schools. The percentages of the 20 tribes with the most students is as follows:

TribeStudent count: student year 01-02StatePercent
Eastern Navajo4,665NM
Western Navajo4,362AZ
Chinle Navajo3,579AZ
Ft. Defiance Navajo3,361AZ
Shiprock, Navajo2,379NM
Total Navajo18,346
Oglala Sioux3,296SD6.84
Turtle Mt. Chippewa2,146ND4.46
MS Choctaw1,889MS3.92
Cheyenne River Sioux1,377SD2.86
Eastern Cherokee1,156NC2.40
Rosebud Sioux1,008SD2.09
Standing Rock Sioux948SD/ND1.97
White Mt. Apache911AZ1.89
Gila River864AZ1.79
Tohono O'odham768AZ1.59
Pueblo of Laguna562NM1.17
Sisseton Wahpeton Sioux541SD1.12
Three Affiliated497ND1.03
Spirit Lake Sioux485ND1.01
Mescalero Apache441NM.92
Pueblo of San Felipe418NM.87
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Ramah Navajo393NM.82
Crow Creek Sioux389SD.81
Total for 20 tribes37,75678.39
Other tribes10,41021.61
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[FR Doc. 02-31121 Filed 12-9-02; 8:45 am]