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2004 Reg Neg Workshop Cases



Case Studies: Four Department of the Interior Reg-Negs
(Taken from a PowerPoint Presentation)


Case Study One: Bureau of Indian Affairs: 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
  • 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
  • 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"
  • 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
  • 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


Case Study Two: National Park Service: 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
  • 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
  • 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
  • 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


Case Study Three: Bureau of Indian Affairs: 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
  • 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

Case Study Four: National Park Service: 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
  • 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
  • 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
  • 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