6770 Federal Register / Vol. 78, No. 21 / Thursday, January 31, 2013 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 30 

Notice of Intent To Establish an 

Adequate Yearly Progress Negotiated 

Rulemaking Committee 

AGENCY: Bureau of Indian Education, 

Interior. 

ACTION: Notice of intent; request for 

comments or nominations. 

SUMMARY: The Bureau of Indian 

Education (BIE) is announcing its intent 

to establish an Adequate Yearly Progress 

Negotiated Rulemaking Committee 

(Committee). The Committee will 

recommend revisions to the existing 

regulations for Adequate Yearly 

Progress (AYP). As required by the No 

Child Left Behind Act of 2001, the 

Secretary will select representatives of 

Indian tribes for the Committee from 

among individuals nominated by tribes 

whose students attend BIE-funded 

schools operated by either the Bureau or 

by the tribe through a contract or grant 

and who would be affected by a final 

rule. The BIE solicits comments on this 

proposal to establish the Committee, 

including comments on additional 

interests not identified in this notice of 

intent, and invites tribes to nominate 

representatives for membership on the 

Committee. 

DATES: Submit nominations for 

Committee members or written 

comments on this notice of intent on or 

before March 4, 2013. 

ADDRESSES: You may submit 

nominations for Committee members or 

written comments on this notice of 

intent by any of the following methods: 

• Send comments or nominations to 

Ms. Sue Bement, Designated Federal 

Officer, Bureau of Indian Education, 

1011 Indian School Road, NW., Suite 

332, Albuquerque, New Mexico, 87104; 

email: AYPcomments@bia.gov; 

Telephone: (505) 563–5274; Fax: (505) 

563–5274; or 

• Hand-carry comments or use an 

overnight courier service. Our courier 

address is Manuel Lujan Jr. Building, 

Building II, Suite 332, 1011 Indian 

School Road NW., Albuquerque, New 

Mexico 87104. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sue Bement, Designated Federal Officer; 

Telephone: (505) 563–5274; Fax: (505) 

563–5281. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The No Child Left Behind Act of 2001 

(Act) required States to use certain 

academic content standards, 

assessments, and a specific 

methodology for calculating the AYP of 

students (together, referred to as an 

‘‘accountability system’’) to measure 

academic achievement. See 20 U.S.C. 

6311. The Act’s amendments to the 

Elementary and Secondary Education 

Act (ESEA) required the Bureau of 

Indian Affairs (BIA) to promulgate 

regulations through negotiated 

rulemaking for the accountability 

system to be used in Bureau-funded 

schools. See 20 U.S.C. 6316(g)(1)(A)(i); 

25 U.S.C. 2017–2018. 

In 2005, the BIA promulgated such 

regulations. See 70 FR 22178 (April 28, 

2005). These regulations, codified at 25 

CFR 30.104, require BIE to use the 

accountability system of the State in 

which a BIE-funded school is located to 

calculate AYP. 

BIE-funded schools are located in 23 

different States; and each State has its 

own accountability system. As a result, 

each State system produces student 

achievement data that cannot be directly 

compared with data from other States. 

For BIE, comparison is necessary to 

identify under-performing schools and 

direct resources effectively. 

BIE had previously developed a 

method for comparing academic 

achievement across States despite the 

variances in academic standards. But 

now that some States have received 

flexibility waivers from the Department 

of the Education, BIE will no longer be 

able to use this method to effectively 

compare achievement. It is necessary, 

therefore, to revise 25 CFR part 30. 

BIE has already conducted several 

regional meetings on the topic of 

accountability in BIE-funded schools. 

Meetings were held in Oklahoma City, 

OK, on July 17, 2012; Flagstaff, AZ, on 

July 20, 2012; Seattle, WA, on July 24, 

2012; and Bismarck, ND, on July 27, 

2012. 

II. Statutory Provisions 

The Negotiated Rulemaking Act of 

1996 (NRA) (5 U.S.C. 561 et seq.); the 

Federal Advisory Committee Act 

(FACA) (5 U.S.C. Appendix 2); the No 

Child Left Behind Act (20 U.S.C. 2000 

et seq.). 

III. The Committee and Its Process 

In a negotiated rulemaking, the 

provisions of a proposed rule are 

developed by a committee composed of 

at least one representative of the 

government and representatives of the 

interests that will be significantly 

affected by the rule. Decisions are made 

by consensus, which means unanimous 

concurrence among the interests 

represented on the Committee, unless 

the Committee (1) agrees to define 

‘‘consensus’’ to mean a general but not 

unanimous concurrence, or (2) agrees 

upon another specified definition. 5 

U.S.C. 562(2)(A) and (B). 

As part of the negotiated rulemaking 

process, the agency has identified 

interests potentially affected by the 

rulemaking under consideration, 

including students enrolled at 174 BIEfunded schools, parents of such 

students, school administrators, tribes, 

and the Indian communities served by 

these schools. By this notice of intent, 

BIE is soliciting (1) comments on its 

proposal to form a negotiated 

rulemaking committee and (2) 

nominations for Committee members 

who will adequately represent the 

interests which are likely to be 

significantly affected by the proposed 

rule. 

Following the receipt of nominations 

and comments, the BIE will publish in 

the Federal Register a list of persons to 

represent the interests which are likely 

to be significantly affected by the rule, 

and the person or persons proposed to 

represent the agency. Persons who will 

be significantly affected by the proposed 

rule and who believe that their interests 

will not be adequately represented by 

any person specified in the 

abovementioned Federal Register notice 

will be given an opportunity to apply 

for, or nominate another person for, 

membership on the negotiated 

rulemaking committee to represent such 

interests with respect to the proposed 

rule. 

Following the second Federal 

Register notice and responses to it, the 

BIE expects to establish the Committee. 

After the Committee reaches consensus 

on the provisions of the proposed rule, 

as discussed in more detail below, the 

BIE will publish a proposed rule in the 

Federal Register. 

Under 5 U.S.C. 563, the head of the 

agency is required to determine that the 

use of the negotiated rulemaking 

procedure is in the public interest. 

In making such a determination, the 

agency head must consider certain 

factors. Taking these factors into 

account, the Secretary, through the 

authority delegated to the Assistant 

Secretary—Indian Affairs, has 

determined that a negotiated rulemaking 

is in the public interest because: 

1. A rule is needed. The No Child Left 

Behind Act, 20 U.S.C. 2000 et seq., 

directs the Secretary to conduct a 

negotiated rulemaking pursuant to the 

NRA. The current definition of AYP 

creates a fragmented accountability 

system that prevents the BIE from 

developing and implementing 

comprehensive school reform initiatives 


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Federal Register / Vol. 78, No. 21 / Thursday, January 31, 2013 / Proposed Rules 6771 

in the 174 BIE-funded schools in 23 

States. 

2. A limited number of identifiable 

interests will be significantly affected by 

the rule. 174 BIE-funded schools, the 

students enrolled at these schools, 

school administrators, tribes, and Indian 

communities served by these schools 

will be significantly affected by this 

review and the recommendations made 

by this Committee. 

3. There is a reasonable likelihood 

that the Committee can be convened 

with a balanced representation of 

persons who can adequately represent 

the interests discussed in item 2, above 

and who are willing to negotiate in good 

faith to attempt to reach a consensus on 

provisions of a proposed rule. 

4. There is a reasonable likelihood 

that the Committee will reach consensus 

on a proposed rule within a fixed period 

of time. 

5. The use of negotiated rulemaking 

will not unreasonably delay the 

development of a proposed rule because 

time limits will be placed on the 

negotiation. We anticipate that 

negotiation will expedite a proposed 

rule and ultimately the acceptance of a 

final rule. 

6. The BIE is making a commitment 

to ensure that the Committee has 

sufficient resources to complete its work 

in a timely fashion. 

7. The BIE, to the maximum extent 

possible and consistent with the legal 

obligations of the agency, will use the 

consensus report of the Committee as 

the basis for a proposed rule for public 

notice and comment. 

IV. Negotiated Rulemaking Procedures 

In compliance with FACA and NRA, 

the BIE will use the following 

procedures and guidelines for this 

negotiated rulemaking. The BIE may 

modify them in response to comments 

received on this notice of intent or 

during the negotiation process. 

A. Committee Formation 

The Committee will be formed and 

operated in full compliance with the 

requirements of FACA and NRA, and 

specifically under the guidelines of its 

charter. 

B. Member Responsibilities 

The Committee is expected to meet 

approximately three to five times. The 

meetings will be held at various 

locations across Indian country, and 

will last two to three days each. The 

initial meeting will be in person; some 

later meetings may be held by 

teleconference and/or web-conference. 

The Committee’s work is expected to 

occur over the course of 6–12 months. 

Because of the scope and complexity 

of the tasks at hand, committee 

members must be able to invest 

considerable time and effort in the 

negotiated rulemaking process. 

Committee members must be able to 

attend all committee meetings, work on 

committee work groups, consult with 

their constituencies between committee 

meetings, and negotiate in good faith 

toward a consensus on issues before the 

committee. Because of the complexity of 

the issues under consideration, as well 

as the need for continuity, the Secretary 

reserves the right to replace any member 

who is unable to participate in the 

Committee’s meetings. 

Responsibility for expenses is stated 

under 5 U.S.C. 568(c) as follows: 

Members of a negotiated rulemaking 

committee shall be responsible for their 

own expenses of participation in such 

committee, except that an agency may, 

in accordance with section 7(d) of the 

Federal Advisory Committee Act, pay 

for a member’s reasonable travel and per 

diem expenses, expenses to obtain 

technical assistance, and a reasonable 

rate of compensation, if— 

(1) Such member certifies a lack of 

adequate financial resources to 

participate in the Committee; and 

(2) The agency determines that such 

member’s participation in the 

Committee is necessary to assure an 

adequate representation of the member’s 

interest. 

The BIE commits to pay the reasonable 

travel and per diem expenses of 

Committee members, if appropriate 

under the NRA and Federal travel 

regulations. 

C. Composition of Committee 

The Secretary is seeking nominations 

for tribal representatives, consistent 

with the provisions of 25 U.S.C. 2018, 

to serve on the Committee, who have a 

demonstrated ability to communicate 

well with groups about the interests 

they will represent. The Committee 

cannot exceed 25 members, and the BIE 

prefers 15. 

Tribal Committee membership must: 

• Meet the Act’s requirements for 

proportionate representation of tribes 

served by BIE-funded schools; 

• Be selected from among individuals 

nominated by tribes that have students 

attending BIE-funded schools either 

operated by the Bureau or by the tribe 

through a contract or grant; and 

• Mirror the proportionate share of 

students from the tribes served by the 

BIE-funded school system. 

The Act requires the Secretary to 

ensure that the various interests affected 

by the proposed report(s) or rules be 

represented on the Committee. In 

making membership decisions, the 

Secretary shall consider whether the 

interest represented by a nominee will 

be affected significantly by the final 

products of the Committee, which may 

include report(s) and/or proposed 

regulations; whether that interest is 

already adequately represented by tribal 

nominees; and whether the potential 

addition would adequately represent 

that interest. 

D. Administrative and Technical 

Support 

The BIE will provide sufficient 

administrative and technical resources 

for the Committee to complete its work 

in a timely fashion. BIE, with the help 

of the facilitator, will prepare all 

agendas, provide meeting notes, and 

provide a final report of any issues on 

which the Committee reaches 

consensus. 

E. Training and Organization 

At the first meeting of the Committee, 

a neutral facilitator will provide training 

on negotiated rulemaking, interest-based 

negotiations, consensus-building, and 

team-building. In addition, at the first 

meeting, Committee members will make 

organizational decisions concerning 

protocols, scheduling, and facilitation of 

the Committee. 

F. Interests Identified Through 

Consultation 

Under Section 562 of the NRA, 

‘‘‘interest’ means, with respect to an 

issue or matter, multiple parties which 

have a similar point of view or which 

are likely to be affected in a similar 

manner.’’ We have consulted with BIE 

personnel, educators at BIE-schools, 

tribal officials, parents, teachers, 

administrators, and school board 

members of tribes served by BIE-funded 

schools. The BIE has determined that 

the interests likely to be significantly 

affected by this new rule include the 

174 BIE-funded schools, the students 

enrolled at these schools, school 

administrators, tribes, and the Indian 

communities served by these schools. 

BIE is accepting comments identifying 

other interests that may be significantly 

affected by the final products of the 

Committee, which may include report(s) 

and/or proposed regulations, until the 

date listed in the DATES section of this 

notice of intent. 

V. Request for Nominations and 

Comments 

The BIE solicits nominations from 

tribes whose students attend BIE-funded 

schools operated either by the BIE or by 

the tribe through a contract or grant, to 


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6772 Federal Register / Vol. 78, No. 21 / Thursday, January 31, 2013 / Proposed Rules 

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 multitribal jurisdiction or for each tribe in the 

multi-tribal jurisdiction to nominate a 

representative with the knowledge that 

BIE will only be able to appoint one of 

the nominees who will then be 

responsible for representing the entire 

multi-tribal jurisdiction on the 

Committee. Each nomination is 

expected to include a nomination for a 

representative and an alternate who can 

fulfill the obligations of membership 

should the representative be unable to 

attend. The Committee membership 

should reflect the diversity of tribal 

interests, and tribes should nominate 

representatives and alternates who will: 

• Have knowledge of school 

assessments and accountability systems; 

• Have relevant experience as past or 

present superintendents, principals, 

facility managers, teachers, or school 

board members, or possess direct 

experience with adequate yearly 

progress; 

• Be able to coordinate, to the extent 

possible, with other tribes and schools 

who may not be represented on the 

Committee; 

• Be able to represent the tribe(s) with 

the authority to embody tribal views, 

communicate with tribal constituents, 

and have a clear means to reach 

agreement on behalf of the tribe(s); 

• Be able to negotiate effectively on 

behalf of the tribe(s) represented; 

• Be able to commit the time and 

effort required to attend and prepare for 

meetings; and 

• Be able to collaborate among 

diverse parties in a consensus-seeking 

process. 

VI. Submitting Nominations 

The Secretary will only consider 

nominees nominated through the 

process identified in this Federal 

Register notice. Nominations received 

in any other manner will not be 

considered. Nominations must include 

the following information about each 

nominee: 

(1) The nominee’s name, tribal 

affiliation, job title, major job duties, 

employer, business address, business 

telephone and fax numbers (and 

business email address, if applicable); 

(2) The tribal interest(s) to be 

represented by the nominee (see section 

V of this notice of intent) and whether 

the nominee will represent other 

interest(s) related to this rulemaking, as 

the tribe may designate; 

(3) A resume reflecting the nominee’s 

qualifications and experience in Indian 

education (which may include being a 

parent of a student attending a BIEfunded school); and 

(4) A brief description of how they 

will represent tribal views, 

communicate with tribal constituents, 

and have a clear means to reach 

agreement on behalf of the tribe(s) they 

are representing. 

Additionally, a statement whether the 

nominee is only representing one tribe’s 

views or whether the expectation is that 

the nominee represents a specific group 

of tribes. 

To be considered, nominations must 

be received by the close of business on 

the date listed in the DATES section, at 

the location indicated in the ADDRESSES

section. 

Certification 

For the above reasons, I hereby certify 

that the Adequate Yearly Progress 

Negotiated Rulemaking Committee is in 

the public interest. 

Dated: January 22, 2013. 

Kevin K. Washburn, 

Assistant Secretary, Indian Affairs. 

[FR Doc. 2013–01957 Filed 1–30–13; 8:45 am] 

BILLING CODE 4310–6W–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–140649–11] 

RIN 1545–BK65 

Failure To File Gain Recognition 

Agreements and Other Required 

Filings 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This document contains 

proposed regulations that would amend 

the existing rules governing the 

consequences to U.S. persons for failing 

to file gain recognition agreements 

(GRAs) and related documents, or to 

satisfy other reporting obligations, 

associated with certain transfers of 

property to foreign corporations in 

nonrecognition exchanges. These 

regulations affect U.S. persons that 

transfer property to foreign 

corporations. 

DATES: Written or electronic comments 

and requests for a public hearing must 

be received by April 1, 2013. 

ADDRESSES: Send submissions to 

CC:PA:LPD:PR (REG–140649–11), room 

5203, Internal Revenue Service, P.O. 

Box 7604, Ben Franklin Station, 

Washington, DC 20044. Submissions 

may be hand-delivered Monday through 

Friday between the hours of 8 a.m. and 

4 p.m. to CC:PA:LPD:PR (REG–140649– 

11), Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue NW., 

Washington, DC 20224, or sent 

electronically via the Federal 

Rulemaking Portal at http:// 

www.regulations.gov (IRS REG–140649– 

11). 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

Mary W. Lyons, (202) 622–3860; 

concerning submission of comments 

and to request a hearing, 

Oluwafunmilayo (Funmi) Taylor, (202) 

622–7180 (not toll-free numbers). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collections of information 

contained in the regulations have been 

reviewed and approved by the Office of 

Management and Budget in accordance 

with the Paperwork Reduction Act of 

1995 (44 U.S.C. 3507(d)) under control 

number 1545–1487. 

The collections of information are in 

§§ 1.367(a)–3(f)(2), 1.367(a)–8(p)(2), 

1.367(e)–2(f)(2), 1.6038B–1(c)(4)(ii), and 

1.6038B–1(e)(4). The collections of 

information are mandatory. The likely 

respondents are domestic corporations. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a valid control 

number. 

Books and records relating to a 

collection of information must be 

retained as long as their contents might 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and tax return information 

are confidential, as required by 26 

U.S.C. 6103. 

Background 

A. Sections 367(a) and 6038B 

Section 367(a)(1) provides that if, in 

connection with any exchange 

described in section 332, 351, 354, 356, 

or 361, a United States person (U.S. 

transferor) transfers property to a foreign 

corporation (transferee foreign 

corporation), the transferee foreign 

corporation shall not, for purposes of 

determining the extent to which gain 

shall be recognized on such transfer, be 

considered to be a corporation. Sections 


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