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Negotiated Rulemaking at DOI: Cases and Lessons

Fire Island National Seashore has complicated, often unenforced and out of ... regulations dating from 1980s regarding driving on Fire Island National Seashore ...

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Negotiated Rulemaking at DOI: Cases and Lessons

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    Slide 1:Negotiated Rulemaking at DOI: Cases and Lessons

    May 14, 2004

    Slide 2:BIA No Child Left Behind

    What’s the Problem? 186 BIA-funded schools to educate Indian children schools vary in all kinds of ways regulations in many areas need revision, or creation

    Slide 3:BIA No Child Left Behind

    What did Congress do? Part of No Child Left Behind Act calls for regulations for these schools DOI shall develop regs by negotiated rulemaking process to be completed for school year 2004-2005

    Slide 4:BIA No Child Left Behind

    What did DOI do? Tribal consultations – 9-10/02 Convening Report public – 10/02 Chartered FACA Committee – 5/03 Charge: Negotiate regs which cover: funding formulas and procedures, student civil rights, geographic boundaries, “adequate yearly progress”

    Slide 5:BIA No Child Left Behind

    What did Committee do? Met five times, one week each month: 6 - 10/03 Broke into workgroups to negotiate rules simultaneously Had “heck” of a time getting the job done Reached consensus on all six rules

    Slide 6:BIA No Child Left Behind

    Where are we now? Draft Rule was published in 3/04 120 day public comment period running Committee will reconvene to review comments, and perhaps make changes in recommendations to Secretary Rule may be final by end of 2004

    Slide 7:Fire Island Off-Road Driving

    What’s the Problem? Fire Island National Seashore has complicated, often unenforced and out of compliance with national guidance off-road driving regulations dating from 1980s regarding driving on Fire Island National Seashore

    Slide 8:Fire Island Off-Road Driving

    What did NPS do? Attend Training – 5/99 Other Park Super recommended Reg Neg to FI - 1999 Conflict Assessment public – 1/00 Chartered FACA Committee – 5/02 Charge: Negotiate new off-road driving regulations

    Slide 9:Fire Island Off-Road Driving

    What did Committee do? Met five times, every two to three months -- 6/02 - 8/03 Broke into subcommittees to tackle different issues High mistrust, lack of experience in collaboration, difficult start, Island culture make going difficult Reached consensus on most but not all issues

    Slide 10:Fire Island Off-Road Driving

    Where are we now? EA underway NPS writing draft regulations Reg-neg Committee will review rule and provide consultation on on items where consensus was achieved NPS expects to issue Draft Rule in 2005 Final Rule expected by 2006

    Slide 11:638 Tribal Self-Determination

    What did Congress do? Mandated DOI and HHS to streamline contracting process for tribes and tribal organizations DOI and HHS shall develop regs by negotiated rulemaking process to be completed in 18 months or lose rulemaking authority

    Slide 12:638 Tribal Self-Determination

    What did DOI/HHS do? Agreed on committee composition 2 representatives from BIA/HIS (48) DOI (9) HHS (6) Full negotiating authority to Departmental reps Chartered FACA Committee – 1/95 Charge: Committee would determine what regulations, if any, should exist

    Slide 13:638 Tribal Self-Determination

    What did the Committee Do? Largest negotiated rulemaking at the time. Sixty-three committee members with full veto power Served as test case for negotiated rulemaking on Native American issues Binds both DOI and HHS to the same regulations. Met often over 20 months Positive relationships between the negotiators has persisted

    Slide 14:Cape Cod National Seashore Habitat & Driving

    What’s the Problem? CCNS management was shoved from two sides over use and protection of the beach. Advocates sued. Disruptive demonstrations were threatened. Piping Plovers had to be protected. The conflicts intensified through the 1980s

    Slide 15:Cape Cod National Seashore

    What did NPS do? Superintendent arranged a Conflict Assessment Assessment recommended: do NOT try Reg-Neg - 1994 Conditions changed. 2nd Assessment: Promising Prospects Chartered FACA Committee - 1995

    Slide 16:Cape Cod National Seashore

    What did Committee do? Three sessions in four months: 9/95 – 12/95 Agreement built, section by section Protests and surprises in normal range Final consensus on all issues

    Slide 17:Cape Cod National Seashore

    Where are we now? New regs in place six years Successful implementation Broad based satisfaction with outcomes and process Improved working relationships Plover recovery continues

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