[Federal Register: February 25, 2004 (Volume 69, Number 37)]
[Proposed Rules]
[Page 8751-8791]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe04-30]
[[Page 8751]]
-----------------------------------------------------------------------
Part II
Department of the Interior
-----------------------------------------------------------------------
Bureau of Indian Affairs
-----------------------------------------------------------------------
25 CFR Parts 30, 37, 39, 42, 44, and 47
Implementation of the No Child Left Behind Act of 2001; Proposed Rule
[[Page 8752]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 30, 37, 39, 42, 44, 47
RIN 1076-AE49
Implementation of the No Child Left Behind Act of 2001
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: As required by the No Child Left Behind Act of 2001, the
Secretary of the Interior has developed proposed regulations using
negotiated rulemaking that address the following issues: Defining
adequate yearly progress, which is the measurement for determining that
schools are providing quality education; establishing separate
geographic attendance areas for Bureau-funded schools; establishing a
formula for determining the minimum amount necessary to fund Bureau-
funded schools; establishing a system of direct funding and support of
all Bureau-funded schools under the formula established in the Act;
establishing guidelines to ensure the Constitutional and civil rights
of Indian students; and establishing a method for administering grants
to tribally controlled schools.
DATES: Comments on the proposed rule must be received on or before June
24, 2004. Comments on the information collections in the proposed rule
should be submitted to the Office of Management and Budget by March 26,
2004.
ADDRESSES: Submit comments to one of the following addresses. Mail:
Director (630), Bureau of Land Management, Eastern States Office, 7450
Boston Boulevard, Springfield, Virginia 22153, Attention: RIN 1076-
AE49. Personal or messenger delivery: 1620 L Street, NW., Room 401,
Washington, DC 20036. Direct Internet response: http://www.blm.gov/nhp/news/regulatory/index.html
, or at http://www.blm.gov, or at regulations.gov
under Indian Affairs Bureau. Send comments on the information
collections in the proposal to: Interior Desk Officer (1076-AE49),
Office of Information and Regulatory Affairs, 202/395-6566 (facsimile);
e-mail: oira_docket@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT: Catherine Freels, Designated Federal
Official, PO Box 1430, Albuquerque, NM 87103-1430; Phone: 505-248-7240;
e-mail: cfreels@bia.edu.
SUPPLEMENTARY INFORMATION:
I. Overview of Process
II. Part 30--Adequate Yearly Progress
III. Part 37--Geographic Boundaries
IV. Part 39--The Indian School Equalization Program
V. Part 42--Student Rights
VI. Part 44--Grants under the Tribally Controlled Schools Act
VII. Part 47--Uniform Direct Funding and Support
VIII. Procedural Matters
I. Overview of Process
Pursuant to a directive in the No Child Left Behind Act of 2001
(Pub. L. 107-110; enacted January 8, 2002, referred to in this preamble
as ``NCLB'' or ``the Act''), the Department of the Interior established
a Negotiated Rulemaking Committee to develop proposed rules to
implement several sections of the Act relating to the Bureau of Indian
Affairs-funded school system. Negotiated Rulemaking is a process
sanctioned by Subchapter III, or Chapter 5, Title 5, United States Code
and the Federal Advisory Committee Act, 5 U.S.C. Appendix (FACA), that
employs federal representatives and members of the public who will be
affected by rules to jointly develop proposed rules. In this case, the
Act required the Secretary of the Interior to select representatives of
Indian tribes and Bureau-funded schools as well as federal government
representatives to serve on the Committee.
The Committee's task was to draft proposed rules to recommend to
the Secretary. Upon the Secretary's approval, draft rules are published
in the Federal Register for written public comments within a 120-day
public comment period. After the close of the public comment period,
the Committee will reconvene to review these comments and to recommend
promulgation of final rules to the Secretary.
The Secretary chartered the Committee under the Federal Advisory
Committee Act on May 1, 2003. It is comprised of 19 members nominated
by Indian tribes and tribally operated schools. The law required that,
to the maximum extent possible, the tribal representative membership
should reflect the proportionate share of students from tribes served
by the bureau-funded school system. The Secretary also appointed to the
Committee six members from within the Department of the Interior. The
Committee selected three tribal representatives and two federal
representatives as co-chairs. Six individuals were hired to facilitate
all Committee meetings.
The Committee met in five week-long sessions in the months of June
through October 2003. Each session was preceded by a Federal Register
notice stating the location and dates of the meetings and inviting
members of the public to attend. The Committee divided the areas
subject to regulation among four work groups. These workgroups prepared
written products for review, revision and approval by the full
Committee. Committee decisions were made by consensus. All Committee
and workgroup meetings were open to the public, and members of the
public were afforded the opportunity to make oral comments at each
session and to submit written comments.
The Act provisions for which the Committee prepared proposed rules
are:
1. Section 1116(g) of NCLB: Develops a definition of ``Adequate
Yearly Progress'' for the bureau-funded school system.
2. Section 1124 of the Education Amendments of 1978, as amended by
NCLB: Attendance boundaries for bureau-funded schools.
3. Section 1127 of the Education Amendments of 1978, as amended by
NCLB: A determination of the funds needed to sustain bureau-funded
schools and a formula to allocate the current funds.
4. Section 1130 of the Education Amendments of 1978, as amended by
NCLB: The direct funding and support of bureau-funded schools.
5. Section 1136 of the Education Amendments of 1978, as amended by
NCLB: The rights of students in the bureau-funded school system.
6. Section 1043 the Tribally Controlled Schools Act (TCSA) of 1988,
as amended by NCLB: Discharge of the Secretary's responsibilities under
this law through which tribes and tribal school boards can operate
bureau-funded schools under the grant mechanism established in the
Tribally Controlled Schools Act.
Sections II through VII are of this preamble detailed discussions
of each of the individual rules listed above.
II. Part 30--Adequate Yearly Progress
NCLB requires each State to submit a plan to the Secretary of
Education which demonstrates that the State, through its State
Educational Agency (SEA), has adopted challenging academic content
standards and challenging student academic achievement standards
applicable to all schools in the State, and to develop assessment
devices through which student achievement will be measured. For
purposes of adequate yearly progress (AYP), the Bureau of Indian
Affairs is considered the SEA for the bureau-funded school system.
The Act requires each SEA to define Adequate Yearly Progress (AYP).
The
[[Page 8753]]
definition of AYP will establish intermediate (annual) student
achievement goals in math and reading/language arts. If a school meets
the intermediate goal, it has made AYP for that year. Failure of a
school to meet AYP for two or more consecutive years triggers remedial
actions described in the Act. The Act requires that, by 2014, all
students must be achieving at the ``proficient'' level, as measured by
the State's accountability system.
NCLB requires a State and the Bureau of Indian Affairs to define
AYP in a manner that achieves the following requirements:
--Applies the same high standards of academic achievement to all
schools;
--Is statistically valid and reliable;
--Results in continuous and substantial academic improvement for all
students;
--Measures progress of the SEA (BIA) and schools based primarily on the
academic assessments; and
--Includes separate measurable annual goals for continuous and
substantial improvement in the academic achievement of (1) all students
in the school; (2) economically disadvantaged students; (3) students
from major racial and ethnic groups; (4) students with disabilities;
and (5) students with limited English proficiency.
The AYP definition must also include ``additional indicators.'' For
high schools, the additional indicator must be graduation rates. The
SEA must select one additional indicator applicable to schools without
a graduating class. An SEA may also identify additional optional
indicators of student progress to include in its definition of AYP.
To define Adequate Yearly Progress (AYP) for Bureau-funded schools,
the Committee first had to master an understanding of all of the
components of Adequate Yearly Progress under the Act and how they
interrelate with a final definition of AYP. While the workgroup had to
look at the curriculum, standards, and assessments that Bureau-funded
schools were using, the Committee did not negotiate these items. The
negotiation was limited to the definition of AYP.
The AYP workgroup initially considered a definition that would
require all Bureau-funded schools to show that a set percentage of
students (e.g., 11 percent) progressed annually from the ``basic''
achievement level to the ``proficient'' or ``advanced'' achievement
levels. This idea was abandoned, however, because the Department of
Education, which supplied resource consultants to the Committee,
advised that this methodology would not be statistically reliable. The
Department of Education notes that it is not statistically reliable to
aggregate the Bureau-funded school assessment data to make AYP
determinations because each school uses a different assessment system
and also because, collectively, the assessments in use did not meet the
requirements of NCLB set forth in section 1111(b)(3)(C)(ii). Therefore,
the committee needed to develop a definition of AYP that was based on a
uniform assessment system. As the Committee discovered, BIA had
abandoned requiring uniform curriculum and assessments and had instead
allowed schools to align their curriculum with the State in which the
school was located. Thus, the Committee appeared to be left with two
options:
--Selecting a single State's system with one set of curriculum,
standards, and assessments; or
--Allowing each Bureau-funded school to follow the definition of the
State in which it is located.
After Congress passed Goals 2000, States had to set standards for
student achievement. The Bureau chose to adopt national standards, but
most schools chose to align with the standards of the State where they
were located. The committee found that the Bureau of Indian Affairs has
traditionally allowed tribes to follow State's curricula, standards,
and assessments. Originally, the Bureau had attempted to create a
system in which all of the tribes would follow one set of curriculum,
standards, and assessments. Some tribes expressed concern over this
approach. Tribes suggested that the students of Bureau-funded schools
would be better served by allowing the schools to follow the State's
curriculum, standards, and assessments because the Bureau-funded school
students are traditionally more transient and sometimes move between
Bureau-funded schools and public schools. Therefore, Bureau-funded
schools began aligning their curriculum, standards, and assessments
with the State in which they were located.
The Committee revised its initial plan and decided to adopt as the
Bureau definition of AYP the definition of the State in which a school
is located (Sec. 30.104). However, a tribal governing body or school
board can develop an alternative AYP definition and submit it to the
Secretary for approval (Sec. 30.105). This decision implements section
1116(g) of the Act, which expressly permits a tribe or school board to
waive the Bureau's AYP definition and develop its own. The Secretary is
required to approve an alternative definition as long as it is
consistent with section 1111(b) of NCLB, taking into account the unique
circumstances and needs of the schools and the students served (Sec.
30.106).
Tribal representatives on the Committee expressed serious objection
to adopting State AYP definitions as the Bureau's definition instead of
establishing a Bureau-specific definition, which some tribes and school
boards might prefer. There was concern that requiring use of a State's
definition would imply that Bureau-funded schools were subject to State
jurisdiction, would signal abandonment of the Federal Government's
trust responsibility for Indian education, and could diminish tribal
sovereignty. In recognition of these concerns, the Committee developed
language for the proposed rules that expressly states that nothing in
the rules diminishes the Secretary's trust responsibility for Indian
education or any statutory rights; affects in any way the sovereign
rights of an Indian tribe, or subjects Bureau-funded schools to State
jurisdiction (Sec. 30.100).
A detailed procedure for submission of an alternative AYP
definition by a tribe or school board, and for review/approval of that
definition by the Secretary of the Interior is included in Sec. Sec.
30.106 through 30.108. The Department is required by Sec. 30.109 to
provide technical assistance for development of an alternative
definition upon the request of a tribe or school board.
The Department of Education has expressed concern that Sec.
30.107(a) does not include any mention of rewards and sanctions. While
the Department of the Interior feels that the Act leaves responsibility
for determining rewards and sanctions with the State (which, in this
case, is the Bureau of Indian Affairs), we invite comments on this
issue. The Department of Education also expressed concern over the
inclusion of science in the subjects that an alternate definition of
AYP must measure. The committee included science based on the
requirements of section 1111(b)(3)(A) of the Act, but invites comments
on the appropriateness of including science in the list of subjects to
be measured.
The Department of Education feels that, in Sec. 30.115, it is
inaccurate to say that schools must include performance data for grades
10 through 12 in AYP. We disagree, based upon the language in section
1111(b)(3)(C)(v)(I)(cc), which states:
[[Page 8754]]
Except as otherwise provided for grades 3 through 8 under clause
vii, measure the proficiency of students in, at a minimum,
mathematics and reading or language arts, and be administered not
less than once during grades 10 through 12.
We invite comments on this issue.
The consequences of failing to make AYP are described in Sec.
30.117. While the remedial status of ``school improvement,''
``corrective action,'' and ``restructuring'' applicable to public
schools also apply to Bureau-funded schools, the latter are exempt from
two requirements--school choice and supplemental educational services--
that apply to public schools (see Sec. 30.120). These exemptions are
expressly stated in the regulation. The regulation also reiterates in
Sec. 30.119 the tribally operated school board's responsibility to
implement remedial actions, while the Bureau is responsible for
implementing these remedial actions at Bureau-operated schools.
The rule specifies in Sec. 30.121 the Bureau's responsibilities
under the Act to provide funding and technical assistance to schools
who fail to make AYP, and in Sec. 30.122 the Bureau's responsibility
to provide ongoing support to all schools to assist them in making AYP.
The proposed regulation also details the Bureau's reporting
responsibilities in Sec. 30.126.
III. Part 37--Geographic Boundaries
The No Child Left Behind Act requires that all Bureau-funded
schools have designated separate geographic boundaries. The statute
permits tribes to have input in that process. It was the committee's
opinion that the statute extensively prescribed the input tribes may
have in establishing school boundaries. The statute left very few gaps
for the committee to fill with regulations. The workgroup did, however,
feel that the statute was somewhat confusing with regards to what roles
Tribes could fill and when. The following section-by-section analysis
explains the committee's recommendations on geographic boundaries.
Section 37.100. This part provides guidance for the process of
creating attendance boundaries. The intent of this part is to clarify
the role Tribes may have in establishing and revising geographic
attendance boundaries. Overall, the group wanted to reserve for Tribes
the opportunity to participate in all decisions regarding attendance
boundaries and related policies where not statutorily prohibited.
Section 37.101. This section defines key terms unique to this
section of the proposed rule. If a term is not defined in this section
or this part, the definition of the local school board should be
applied.
Section 37.102. Much of this section is a restatement of the
statute, put in clearer organizational structure. This section is
intended to clarify the structure. The workgroup discussed ways to
assist readers find the pertinent portions of the regulation applicable
to their particular type of school. Specifically, the group recognized
that day on-reservation schools would be subject to some different
boundary determinations than off-reservation boarding schools (ORBS).
Subsequently the group started by dividing the rule into two parts. In
doing this, the group discovered that some areas of potential interest
applied equally to all schools, whether on-or off-reservation.
Ultimately the group decided, and the committee approved, a structure
that answered questions applicable to all schools first. If a school
does not find answers in the section applicable to all schools, they
should turn to the section applicable to their particular type of
school. For this reason, this part is organized as follows:
Subpart A--All Schools: This paragraph answers questions for any
Bureau-funded school, including ORBS.
Subpart B--Day schools, On-Reservation Boarding Schools, and
Peripheral Dorms: This section answers only questions for the schools
listed. Nothing in this paragraph addresses ORBS unique situation.
Subpart C--Off Reservation Boarding Schools: This section addresses
questions uniquely applicable to ORBS. Nothing in this paragraph
applies to on-reservation schools of any type.
Subpart A--All Schools
Section 37.110. This section highlights for tribes their authority
to participate in the process of establishing school boundaries.
Additionally, this section serves as a reminder that, if a Tribe
chooses not to establish their own school boundaries, the Secretary
must draw the boundaries for them. The Secretary is charged with
ensuring all schools have boundaries.
Section 37.111. This section clarifies that Tribes may have a role
in establishing geographic boundaries. Specifically, the proposed rule
highlights the Tribe's ability to authorize transportation funding for
their member-students attending schools outside of their designated
geographic boundary. A student's designated geographic boundary is the
geographic attendance area of the school that covers the student's
primary residence. The Bureau will not automatically provide
transportation for students who choose to attend a school outside of
their designated geographic attendance area. The Bureau may only
provide transportation funding for students attending outside of their
designated geographic attendance area when the student's Tribe
authorizes such expenditure.
This section is of particular importance to tribes that seek to
control where their students enroll in school. The committee was aware
of some Tribes seeking to prevent their member-students from attending
other Tribes' schools. Initially, the group had proposed rule that more
thoroughly emphasized the Tribe's authority to authorize or withhold
transportation funding. The group discussed an interpretation of the
statute that permitted Tribes to pass resolutions restricting parental
choice. However, a key component of the No Child Left Behind Act is
parental choice. Though the group tried, they were unable to draft a
regulation that observed Tribal restrictions on attendance, yet still
permitted parental choice, as required by statute. Ultimately, the
committee agreed to a more succinct explanation that emphasized Tribal
authority to open school boundaries.
Absent from this section is a prescription on how a tribe
authorizes transportation funding. Originally the group suggested
manners in which a Tribe would provide this authorization. In the
committee-at-large discussion, the group's description of authorization
was deemed unclear and unnecessary. Additionally, the sentiment was
expressed that the tribe should determine how to authorize funding.
Section 37.112. All schools must have boundaries. This section was
included to serve to further notify tribes that, if they fail to act
and set their own school boundaries, the Secretary must and will do it
for them.
Subpart B--Day schools, On-Reservation Boarding Schools, and Peripheral
Dorms
Section 37.120. This section was provided to put Tribes on notice
of the opportunity to establish and revise current school boundaries.
This section clarifies that the established boundaries currently in use
will remain in place unless revised by the appropriate Tribal governing
body. This section is intended to encourage Tribes to review existing
boundaries and use the processes defined in this Part to make changes
to meet current needs.
Section 37.121. Who establishes geographic attendance boundaries
under this part? This section reiterates the
[[Page 8755]]
statutory prescription for when a Tribe may establish geographic
attendance boundaries for its schools. The work group felt that the
statutory language was unclear and may inadvertently preclude Tribes
from acting to change school boundaries.
Section 37.122. Tribes have ongoing authority to suggest changes to
and participate in the revision of geographic attendance boundaries.
This section explains the process Tribes must use to change geographic
attendance boundaries, regardless of when the Tribe suggests such
changes.
This section is also a restatement of the statutory language.
Again, the work group felt that the statutory language alone may not
sufficiently inform Tribes of the process for changing school
boundaries. Specifically, the group sought to clarify some of the
limitations on the Secretary's ability to change school boundaries and
highlight the weight and importance the Tribe's views have in the
boundary setting process.
(a) The group restated the limitations placed on the Secretary's
ability to change existing school geographic attendance boundaries.
After notice of the Secretary's intention to modify school boundaries,
Tribes must be given 6 months notice before changes become effective.
In that time the Tribes have an opportunity to suggest different
modifications to the Secretary's proposed changes. The restatement of
this limitation is intended to inform Tribes of their role in boundary
determinations.
(b) This paragraph signifies the impact of Tribal views in the
boundary setting and revision process. If a Tribe determines that the
geographic attendance boundaries of a school is not meeting the needs
of the Tribe or the students, the Tribe may request that the Secretary
modify the boundaries. The group determined that the letter requesting
the modification should go to the Director of the Office of Education
Programs. The Office of Indian Education Programs must respond to the
Tribal requests for a boundary modification after consulting with the
Secretary of the Interior and the Assistant Secretary-Indian Affairs.
If the Tribe's suggestion is rejected, a written explanation must be
provided detailing why the proposed changes do not meet the needs of
the Indian students to be served and how the proposed changes would
affect the affected programs. Such requirements will ensure that Tribes
will have an opportunity to give meaningful input into setting school
boundaries and the process is transparent.
Section 37.123. This section highlights the authority of the Tribe
to create their own processes to develop and revise geographic
attendance boundaries. The committee wanted to place as few
prescriptions on Tribes as possible. The group was careful to craft a
regulation which respected Tribal autonomy and sovereignty concerning
education. Consequently, the group did not want to tell Tribes who to
consult when revising school boundaries. It was the intention of this
section to emphasize coordination among entities involved in the
education of the student when setting boundaries. The referenced
``entities'' with which consultation should be made were not
specifically listed as it was thought the individual Tribes could best
determining who should be included in the consultation process.
Section 37.124. At the time of drafting this rule (2003), a
moratorium existed on construction of new Bureau-funded schools.
Despite the moratorium, provisions of the No Child Left Behind Act
could be interpreted to specifically include and apply to new Bureau-
funded schools. In consideration for such an interpretation, this
section of this Part was included in the regulations. Nothing in this
rule, however, provides authorization for additional Bureau-funded
schools to be constructed absent Congressional authorization. Should
such schools be established in the future, this section would apply.
Section 37.125. This section explains the authority of Tribes to
determine whether student tribal members may receive transportation
funding when such students desire to attend a Bureau-funded school
outside of the student's designated geographical attendance boundary.
This section also explains the process by which transportation funding
may be authorized for students living off the reservation of the Tribe
in which the student is enrolled. The drafters desired to preserve the
maximum degree of discretion, within the bounds of tribal jurisdiction,
for Tribes to exercise in addressing determinations of transportation
funding.
Where possible schools should provide services to eligible students
living near the reservation though such students are not included in
the schools' geographic attendance boundary. This section recognizes
prior practices that permitted eligible students who resided near the
reservation to enroll in Bureau-funded schools.
Subpart C--Off-Reservation Boarding Schools
Section 37.130. The Secretary of the Interior determines the
boundaries for ORBS. While the Secretary should consult with all tribes
that fall within the boundaries of a particular off-reservation
boarding school, it is the Secretary and not the ORBS or Tribe who
establish the boundary. The group discussed stating in the regulation
that the Secretary could not establish overlapping boundaries for ORBS.
Examination of the map of boundaries currently in use revealed that,
currently, no ORBS boundaries overlap. Though the group desired to
mitigate some of the cross-country student recruitment by ORBS, the
committee felt that the restriction placed on transportation funding
was a sufficient hindrance. Initially, the group had included a
specific subsection clarifying that students were only entitled
transportation funding to attend the student's designated ORBS. That
section was taken out in the committee-at-large discussion.
Transportation funding pertains to all students, whether attending
school on-or off-reservation. The language addressing proper
authorization of transportation funding was initially discussed in the
context of all schools. The committee could not reach consensus on who
was the appropriate entity to authorize transportation funding. The
work group then suggested only referencing transportation authorization
in the section on ORBS. The same concerns arose and further discussion
of transportation was thought to be redundant. The committee resolved
that a succinct statement addressing transportation funding in the
section applicable to all schools was sufficient.
Section 37.131. This section clarifies that any ISEP eligible
student may elect to attend an ORBS. The group intended that all ORBS
will have separate, non-overlapping geographic attendance boundaries
that will cover the entire United States. Students may attend the ORBS
designated for the student's primary residence with or without Tribal
permission.
IV. Part 39--The Indian School Equalization Program
Under the No Child Left Behind Act, Congress required the Committee
to establish, through negotiated rulemaking, rules regarding a formula
for the ``minimum annual amount of funds necessary to sustain each
Bureau-funded school'' and a formula to distribute funding to BIA
schools. 20 U.S.C. 2007. As with the other rules the
[[Page 8756]]
Committee developed, the Committee established a Funding Workgroup to
develop draft rules for review by the full Committee.
The Bureau currently funds its schools through published procedures
known as the Indian School Equalization Program (ISEP) and a mechanism
defined in the ISEP known as the Indian School Equalization Formula
(ISEF). The current equalization formula assigns weighted units to each
student enrolled in grade levels K-12 and when applicable to homeliving
programs. Each weight has a different value, and the weight of 1.15 is
the base weight for all students. In addition to the base weight,
increased values are assigned to certain grade levels to compensate for
additional cost. Moreover, supplemental programs providing bilingual
education, gifted and talented education, and intense residential
guidance are funded by increased weighted values. The total weights for
each school are determined by multiplying the student enrollment for
each program area by the weights. This total of weighted student units
for each school is then multiplied by the base unit value to determine
the funding amount for each school. The base unit value is determined
by dividing the total of all weighted student units generated by each
school into the total amount appropriated for distribution.
The Committee reviewed the current BIA funding mechanism and
distribution practices. The Committee understands that the current
funding formula at 25 CFR part 39 was developed to provide equity in
funding across the BIA school system. The Committee identified areas
where the current formula does not provide equity and uniformity in the
BIA school system. For example, all funding is currently based on a
``count week'' in September. This one-week period does not provide a
complete school year count of all students served by a school or
residential program. Therefore, any population increase or decrease
after the September count week is not accounted for under the current
system. Some Committee members suggested that the concept of a one-week
count week encourages abuse for the following reasons: (1) There is no
incentive to retain students after the count week is over, (2) there
are many opportunities for schools to inflate student enrollment by
busing children in or sponsoring events to attract students for that
week, and (3) there are incentives to inflate the number of students
identified for supplemental services, such as bilingual and gifted and
talented, because these supplemental programs provide for increased
funding. The Committee attempted to minimize the opportunities for
abuse in the proposed rule.
One of the Committee's primary concerns was accountability, which
is a critical element of the Act. The Committee tried to build into
these proposed rules accountability for both BIA-operated and tribally
operated schools, as well as accountability for those BIA officials
overseeing the Indian education program. Because accountability is
critical to implementing ISEP and ISEF, the Committee developed
provisions in the new rules to hold both BIA and all Bureau-funded
schools accountable to standards promoting equality and fairness.
For example, in , the Committee proposed a section to provide for
increased accountability through reviews of both the school's certified
count and the education line officer's count verification. The
Committee recommended that the Director annually conduct random audits,
and that an outside auditor also conduct annual, random audits to
ensure the accuracy of ISEP requirements and the ISEF process.
The Committee believes that all schools funded by BIA must accept
the responsibility to be accountable in all aspects of their
operations. Each tribal organization, school board, and administrator
in the system must accept the challenge to make ISEP work in the best
interests of all students served by the Bureau-funded school system.
The proposed rules require each school to maintain individual files and
certify the accuracy of their contents relating to necessary
documentation of student eligibility to receive base and supplemental
services. In addition, the education line officer is held accountable
to verify that students meet the necessary standards for base and
supplemental services through the verification process. Each
verification will be reviewed by either the Director or an outside
auditing firm.
The intent of the rules needs to be considered and all parties
involved should be committed to making ISEP work, rather than trying to
find ways to give their school an advantage over the other schools in
the Bureau-funded school system. It is a matter of personal and
professional integrity and fairness for those organizations and
individuals charged with administering the rules to find ways to make
ISEP and ISEF work properly.
The Committee also feels that accountability must be present at all
levels of BIA and the Office of Indian Education Programs (OIEP). BIA
must fulfill its obligation to the students served by the Bureau-funded
school system so that each child is given equal opportunity to be
successfully educated. Schools should not be penalized for BIA's
failure to administer the law and rules fairly. These proposed rules
were drafted to comply with the section 1120 of the NCLB that states:
It is the policy of the United States to fulfill the Federal
Government's unique and continuing trust relationship with and
responsibility to the Indian people for the education of Indian
children * * * ensuring that the programs of the Bureau of Indian
Affairs-funded school system are of the highest quality and provide
for the basic elementary and secondary educational; needs of Indian
children, including meeting the unique educational and cultural
needs of those children.
Section 1127 Funding Formula
Under NCLB Congress required the Secretary, through this Committee,
to undertake three specific tasks: (1) To establish a formula for
determining the minimum annual amount of funds necessary to sustain
each Bureau-funded school; (2) to consider the cost of providing
academic services which are at least equivalent to those provided by
public schools in the State in which the school is located; and (3) the
development of a pro rata formula to distribute funding under the ISEF.
Minimum Amount of Funding to Sustain Each Bureau-Funded School. The
Committee discussed various options for determining the minimum amount
of funding needed to sustain each bureau-funded school. Most options
required BIA to have data regarding the actual costs associated with
Bureau-funded schools. Consequently, the Committee is proposing a
formula based on the dollar value of a student unit nationally as
reported by the National Center for Education Statistics (NCES). By
looking at the NCES and comparing Bureau-funded schools with Department
of Defense schools and District of Columbia public schools, the
Committee is proposing a formula that would be based on an accurate
cost estimate of operating Bureau-funded academic schools. A similar
formula would also more accurately determine the cost of housing a
residential student. Moreover, the Committee recognizes that on
average, the actual cost for a residential student is two times or more
than that of an academic student. However, this formula cannot be fully
implemented until the Bureau can collect the data necessary to develop
an accurate summary of the amount of funding needed to provide the
minimum amount of funding necessary to sustain each Bureau-funded
school.
[[Page 8757]]
Upon receipt of adequate education cost data, the Committee would
hope that the Department could present this data to Congress so that it
could review whether it provides sufficient funding to all Bureau-
funded schools and residential programs.
The formula establishing the minimum amount of funding to sustain
each Bureau-funded school is located in subpart H of the proposed rule.
The Department seeks comments on whether the material explaining the
derivation of the formula should be included as an appendix, rather
than in the body of the rule.
The Cost of Providing Equivalent Academic Services. One of the
responsibilities imposed upon BIA by the NCLB is to determine the level
of funding necessary to finance Bureau-funded schools and residential
programs at a level at least equal to that provided by the public
schools in the states in which the schools are located. One recent
report from the General Accounting Office indicates that the data
available is not adequate to allow for a comprehensive and accurate
comparison between similarly situated state public schools and Bureau-
funded schools. Due to time constraints the Committee did not develop a
proposal for a data reporting system that would capture specific data
for a comparison between state and BIA-funded schools. However, the
Committee did develop a formula to develop the minimum amount of
funding to sustain each Bureau-funded school which looks at other
similarly situated school and residential programs.
Pro Rata Formula. The Committee was also required to develop a
formula to distribute funding appropriated by Congress. To develop a
distribution formula, the Committee reviewed the existing distribution
formula and developed a recommended formula that would better meet the
needs of Bureau-funded schools and provide a more equitable
distribution of ISEP funding. The Committee took its responsibility
very seriously and made a conscientious effort to consider all issues
relevant to the rules being developed. The following issues were
matters that the Committee discussed at great lengths as they developed
the ISEF in order to distribute appropriated funds:
Student Count. In Subpart C, the Committee is proposing new rules
for undertaking a count of the student population served by BIA school
system. These rules provide for the use of an average daily membership
for academic purposes and the use of a three-week count period for
residential programs.
The Committee decided against the continuation of a count week for
academic programs. The Committee determined that the concept of using
one week in the entire school year to determine student attendance in
academic programs did not provide an accurate reflection of the
program's population for the entire school year. A concern that the
Committee considered when deciding not to continue an academic count
week was the issue of Spring enrollment. Because the current ``count
week'' is the last week in September, school funding is not reflective
of a school's enrollment and attendance for an entire academic year.
Academic and residential programs may experience sharp increases or
decreases in enrollment during the spring semesters, and a one-week
count period does not take these fluctuations into account. The
Committee also considered using a count period with varying lengths of
time for academic funding, however this was also rejected.
The Committee did decide to retain a count period for residential
programs. The Committee recommends that the count period for
residential programs be the first full week in October. Moreover, the
Committee recommends that a student must also be in attendance in a
residence program the week preceding and the week following the October
count week. Thus, the residential period is a three week period.
The Committee also decided to fund the residential program on the
number of nights of service provided. The current funding mechanism
funds all residential programs seven-night programs. There seem to be
an inequity as some residential programs only offer three or four
nights of service, while others operate for seven full nights of
service. Therefore, the Committee recommends that a residential program
that offers five nights or more of service shall receive full
residential funding, the equivalent of 7/7 weighted student unit. Any
residential program offering less than five nights of service shall be
apportioned a prorated share of funding at 4/7 weighted student unit.
In addition, the Committee recommends that at least 50 percent of
the residency levels established during the count period be maintained
and residency attendance also be reported to OIEP monthly. If a
residential program does not maintain at least 50 percent of its count
period enrollment, then the residential program will lose one-tenth of
its current year funding allocation. The justification for this
recommendation was to encourage residential programs to retain students
throughout the entire school year.
Average Daily Attendance (ADA) versus Average Daily Membership
(ADM). The Committee recommends the use of Average Daily Membership
(ADM) to count students for purposes of ISEP academic funding. Before
deciding to base the student count on ADM, the Committee considered the
merits of both Average Daily Attendance (ADA) and ADM. The Committee
adopted ADM for purposes of a student count because it was decided that
ADM was a more reasonable and fair mechanism for counting student
enrollment and attendance. Unlike ADA, ADM takes into consideration a
grace period when students are sick or absent from school. The
Committee feels that ADM is more accurate and equitable than a ``count
week'' because it provides a comprehensive look at student enrollment
and attendance throughout the entire academic year. In addition, the
Committee believes that ADM would help prevent some of the abuses that
are inherent in the current funding mechanism and also encourage
greater accountability in the academic program. Because ADM is based on
the entire school year, there is now a financial incentive for student
retention and maintaining student attendance throughout the school
year, which the Committee believes will result in higher graduation
rates.
Three-Year Rolling Average. The proposed rules in Sec. 39.205
provide for funding to be based on a 3-year rolling average. A 3-year
rolling average is the mechanism used to determine the amount of money
allocated for a school year based on the average of the three previous
years' allocations. The Committee felt that the rolling 3-year average
would provide a more stable funding base. Thus, enabling a school to
better plan and budget for the upcoming school year.
For example, if a school experiences a drastic enrollment decrease
beginning in the 2006 school year, the 3-year rolling average would
allow the school a 2-year window to adjust its staff and other related
costs. The Committee believes that schools and the OIEP should provide
timely information related to ADM, in order to promote accuracy of the
3-year rolling average.
Payment Dates. The Committee is recommending that BIA distribute 80
percent of a school's funding for the upcoming school year by July 1.
This 80 percent would be based on the 3-year rolling average of ADM
(base and supplemental programs). The Committee also recommends that
BIA distribute the remaining twenty percent of funding by December 1.
This 20 percent would reflect any adjustments
[[Page 8758]]
made by the verification, audit or appeals processes.
In reviewing the Committee's proposed rule, the Federal team has
serious concerns regarding the provisions that states that, ``No school
will receive less than 80 percent of the amount received the previous
year.'' The concern is that the purpose of the 3-year rolling average
is to protect a school against any sharp increases or decreases in
student enrollment. Therefore, this mandated 80 percent seems
duplicative. The Federal team is also concern that if a school with
decreasing enrollment were automatically given 80 percent of their
funding in July, the school would then be responsible to refund BIA for
any overpayment in funding.
Contingency Fund. BIA has existing rules regarding the use of the
contingency fund. The current rules at 25 CFR 39.70-39.78 authorize the
awarding of contingency funds to replace items in the event of their
destruction by earthquake, fire, flood storm, or other ``Acts of God.''
The Committee reviewed these rules and is proposing revisions.
The Committee determined that the Director's Contingency Fund
should only be used to provide for unforeseen, unpredictable, and
emergency circumstances. In order to promote transparency in the
allocation of contingency funds, the Committee required that the
Director annually notify all Bureau-funded schools and appropriate
tribal governing bodies of contingency fund allocations.
Ten percent enrollment increases. The Committee also discussed
whether to include an adjustment for schools whose student population
increased by more than 10 percent over the previous 3-year average.
However, due to time constraints, the workgroup did not present this
issue to the Committee. The Committee would like to seek comments as to
the necessity of a provision providing adjustment funding for schools
that experience a 10 percent increase in student population from the
previous school year's ISEP count. Once again, the purpose of the 3-
year rolling average would be to protect against these types of
significant enrollment increases. The Committee also discussed that
this provision would favor small schools, as a 10 percent increase
would be more readily available to a school with a small population.
Special cost factors. NCLB required the Committee to consider the
following special cost factors:
``The isolation of the school; the need for special staffing,
transportation, or education programs; food and housing costs,
maintenance and repair costs associated with the physical condition
of the educational facilities; special transportation and other
costs of isolated and small schools; the costs of home-living
(dormitory) arrangements, where determined necessary by a tribal
governing body or designated school board; costs associated with
greater lengths of service by education personnel; the costs of
therapeutic programs for students requiring such programs; and
special costs for gifted and talented students.''
As a rule, the Committee considered ``special cost'' factors to be
those factors that only affected a discreet number of schools and were
not prevalent in the Bureau-funded school system. The Committee
identified the following special cost factors: Language development,
isolation factors, gifted and talented, school board training, and
small school adjustment. Other special cost factors were considered,
but did not receive an additional weighted student unit.
The Committee evaluated the impact that special cost factors have
on the ISEF, as special cost factors re-allocate the available funding
and provide more funding for these ``special costs'' at the expense of
a more general distribution. The Committee was also concerned about how
special cost factors impact residential programs, dorm programs, and
schools that do not place an emphasis on these types of programs. By
allocating more funding to ``special programs,'' the Committee was
choosing to make less money available in the general pool. The
Committee is seeking comments on the priority of these choices.
Language Development. In Sec. 39.130, the Committee recommends a
special cost factor of .13 for language programs. The Committee
believes that the need to restore and maintain Native Languages is
important. Historically, the government made a concerted effort to
eliminate the Native Languages in an attempt to force the assimilation
of Indian people. Now there is a desire to maintain and restore those
Native Languages and the culture tied to them. Research has indicated
that students who are proficient in their Native Language will also
achieve better academically. The Committee believes a Native Language
Development Program is an important pathway to appropriate cultural
knowledge and expression.
The Committee also recognizes BIA's obligation to provide English
language development services to students who are limited English
proficient. Therefore, any student who is identified as limited English
proficient is required to receive limited English proficiency services.
Isolation factors. Isolation factors were discussed at length and
the Committee did not have sufficient data to rate the isolation factor
of each school in the bureau-funded school system. Historically, most
Bureau-funded schools are isolated by the placement of Indians on
reservation lands. In general, the Committee felt that special weights
for isolation factors were better addressed as a transportation issue.
However, the Committee did determine that there are some
exceptional circumstances that did warrant additional funding due to
the severe isolation and remoteness of a particular school. The
Committee agreed that Havasupai Elementary School, which is located in
the Grand Canyon, had isolation factors beyond those experienced by
most schools. Havasupai Elementary School has food and other important
items delivered by mule and/or helicopter. The Committee seeks comments
as to whether Black Mesa Community School is also a school that has an
extreme isolation factor that is unique and is not generally
experienced by a majority of the Bureau-funded schools.
The Committee seeks comments on the following chart and the
definition of ``established community.'' This chart was not adopted by
the Committee and did not receive consensus from the Committee. The
Committee could not reach agreement on whether there is sufficient
documentation to clearly identify that certain isolation factors were
not experienced by a majority of Bureau-funded schools. The Committee
encourages tribes and schools to submit public comment on the following
chart so those comments may be given consideration by the Committee
before final recommendations for rules are made. The purpose of these
comment will be to determine whether other less extreme isolation
factors should be given an additional weight under the ISEF.
A school which demonstrates that it meets one or more of the
following criteria will be awarded. An isolations cost factor will
equal the value of the total number of WSU identified for the
applicable criteria, provided, however, that no school will be awarded
an isolation factor of more than 12.5 WSU.
1. The school is located at least 60 1.5 WSU
road miles (one way) from the nearest
established community.
2. The school is dependent upon animal 12.5 WSU
or light aircraft for transportation of
persons, services, and supplies for the
operation of the school.
[[Page 8759]]
3. The school's primary access route is 2.0 WSU
an unpaved road of 10 miles or more.
4. The school's primary access route is 2.0 WSU
dependent upon a bridge or road that is
routinely subject to unavailability
during periods of severe weather or
floods.
For the purposes of this section, the term ``established
community'' means a population center (Metropolitan Statistical Area or
an incorporated city or town) having a year-round population of 1,500
or more, provided that it has minimal essential medical facilities (at
least one physician and one dentist) available to all students and
employees of the school on a non-emergency basis, 24 hour law
enforcement services, a post office, retail grocery store and retail
motor fuel station.
Gifted and Talented. The Community discussed Gifted and Talented
considerations at length. Some members of the Committee are concerned
that schools that claim a disproportionate number of students for
gifted and talented services ultimately reduce the amount of money
available to all students in the ISEF base. The reduction in this base
could adversely affect residential programs (which are not eligible for
the gifted and talented weighted unit) and other schools who either do
not have a gifted and talented program or who have very few students
who meet the gifted and talented requirements. The Committee would like
to seek specific comments on the potential impact on base funding of
residential programs if the number of students identified as gifted and
talented increase significantly.
The Committee considered, but did not adopt the establishment of a
ceiling on the number of students each school could claim for a gifted
and talented weighted unit. This ceiling or cap was considered in order
to ensure that ISEP funding was evenly distributed throughout the
Bureau-funded school system. Some members of the Committee, and members
of the public who commented, did not support a cap on gifted and
talented. One of the concerns regarding the imposition of a cap is that
a cap not only limits the percentage of students who can be counted as
gifted and talented, but may also establish a minimum threshold to
which every school may feel obligated to meet. Ultimately, the
Committee decided not to impose a cap on Gifted and Talented. However,
the Committee did place emphasis of the importance of a process for
identification of gifted and talented students as well as documentation
that gifted and talented services were provided to identified students.
The proposed rules at Sec. 39.106 provide for the eligibility
standards and oversight of gifted and talented funding. These rules
require that a student can be identified as gifted and talented in five
specific categories: intellectual ability, creative/divergent thinking,
academic aptitude, leadership and visual and performing arts. However,
a school cannot identify more than 15 percent of its student population
as gifted and talented in either the leadership or visual and
performing arts categories. The proposed rules outline how students are
to be identified, nominated, and assessed as gifted and talented. In
addition, the rules provide that a student who is identified as gifted
and talented must receive services not ordinarily provided by the
school which meet the goals and objectives specified in the student's
education plan.
School Board Expenses and Training. The current rules at Sec.
39.90 govern how funding is set aside for school board training,
eligible training activities, and the approval process for training
expenditures. NCLB requires a minimum of 40 hours of school board
training for new school board members. School board training issues
will vary from year to year and with each school. There will be some
schools where there is no need for training since all board members are
returning and have already been trained. In other cases, there will be
a need for training as required by law. Thus, the Committee included a
provision at Sec. 39.600 to address this issue.
The Committee also recommends an amount equal to a total of a 1.2
weight to assist Bureau-operated schools in paying for school board
training. Unlike contract or grant schools, Bureau-operated schools are
unable to pay for school board training through Administrative Cost
Grants. Instead, Bureau-operated schools must pay for school board
training from ISEP funding.
Small School and Small High School Adjustment. The Committee
determined that a factor for a Small School Adjustments was important
because these schools do not have economies of scale to provide
adequate educational opportunities for their students. The proposed
rules at Sec. 39.140 provide for this adjustment. By offering an
adjustment (additional weighted units) for schools characterized by
smaller populations, these schools should have increased opportunity to
offer more or better academic services to their students. This is
especially true for small high schools that are required to offer
departmentalized programs.
Residential Programs. Current BIA rules at Sec. 36.71 provide for
a cost factor for a program entitled ``Intensive Residential Guidance
(IRG).'' This factor is available after the establishment of specific
activity programs, individual student diagnostic procedures, and the
development of individual student treatment plans and measurements of
student progress. The Committee recommended that the current additional
weight for the IRG program be eliminated and be added to the
residential base. The result of removing IRG to the base is an overall
increase in the residential base of about .35.
The Committee heard many comments that the IRG program was
cumbersome and did not guarantee that supplemental services were
provided to students with extra ordinary needs. However, the Committee
did decide that when the Committee undertakes negotiated rulemaking for
home living standards that certain standards be included to aid
students with special needs, such as, mental health, substance abuse
and other needs. The Committee discussed that there is a high
probability that the actual cost for a residential student is two times
that of an academic student, however, time restraints did not allow for
further Committee discussion. The therapeutic dorms program was also
discussed and the Committee decided not to include this program in the
ISEF because this program is not funded under ISEP.
Off-Reservation Boarding Schools. The Committee determined that the
Off-Reservation Boarding Schools (ORBS) population represents a unique
population of students. Specifically, the Committee was concerned about
those ORBS schools that receive a large number of students as a result
of a tribal court mandate or extreme disciplinary problems. The
Committee is seeking comments as to whether ORBS schools should receive
an additional weighted unit to fund special costs that are not equally
shared throughout the system.
Accreditation. The Committee recognized that accreditation may
produce some special cost factors, but decided that an additional
weighted unit was not necessary for those schools seeking
accreditation.
Distance and Other Alternative Learning. The Committee discussed
the impacts of Distance Education, Vocational Education, Pre-school
early childhood-education, and the education of non-ISEP eligible
students. The Committee decided that these issues should be covered by
the base program
[[Page 8760]]
or other related programs. For example, pre-school early childhood-
education might be funded by a program such as Head Start. The
Committee also seeks public comment to determine if ISEP or another
funding mechanism might be necessary to fund the education of non-ISEP
eligible students who attend Bureau-funded schools.
Costs Associated with Greater Lengths of Service. The Committee
discussed the costs associated with greater lengths of service by
educational personnel. It was recognized that there is a difference
between bureau-operated schools required to use the DOD salary
schedules and grant/contract schools which use their own salary scale.
The Committee decided not to include this factor in the formula since
many tribes made the decision to become grant or contract schools in
order to have more flexibility and discretion.
Facility Maintenance Costs. The Committee discussed maintenance and
repair costs related to Bureau-funded facilities. However, the
Committee decided that these costs were funded separately from the ISEP
and not relevant to ISEF.
Special Education. The Committee discussed whether students
identified as in need of special education services should be allocated
an additional weighted unit. Some members of the Committee believed
that having an additional weighted unit for special education would be
desirable. After considering the issue in depth, the Committee decided
to keep special education funding in accordance with the current rules
which mandate that each school set aside 15 percent of their basic
instruction allotment to meet the needs of students with disabilities.
If the 15 percent is inadequate to fund services necessary for eligible
students with disabilities, schools may still apply for Part B funding.
The Committee did agree that the OIEP's administration of Part B
special education funding needs to be improved. Many expressed concerns
that access to Part B funding was cumbersome and difficult. Therefore,
the Committee recommends that OIEP provide training and technical
assistance to better serve the Bureau-funded schools in applying for
Part B funding.
Transition/Phase-In Provisions. At Sec. 39.220, the Committee
recommended a phase-in provision to implement the proposed rules. For
the first year after the effective date of publication of a final rule,
OIEP will calculate ADM based on the prior 3 years' count period to
create an average membership for funding purposes. For the second year
and third years, the school will use a combination of ADM count(s) and
applicable ISEP count(s) under the existing rules. Within three years
of implementation of the final rules, OIEP will calculate funding on a
3-year rolling average of each school's ADM.
Transportation. Although the Committee would like to establish a
formula that reflects the actual transportation costs of Bureau-funded
schools, the Committee determined that there was insufficient
information to develop this actual cost formula at this time. To
address this issue, the Committee is proposing new rules for data
collection and is proposing an advance notice of proposed rulemaking so
that the public can comment on the formula the committee would consider
once the data is available. In the meantime, the Committee is proposing
that the current OIEP transportation policy be the proposed
transportation rule.
In addition to the current transportation policy, the proposed
rules would require Bureau-funded academic and residential programs to
report their actual transportation expenditures. This information is
critical to develop an actual cost transportation formula. One reason
the Committee wanted to develop an actual cost formula was to better
reflect a school's transportation costs to avoid situations where these
costs take away from the instructional funding of the schools.
Conclusion
The Committee recognizes that adoption of new formula for
distribution will impact each school differently. It is possible that
some boarding schools may be heavily impacted by the new formula. The
Committee feels strongly that the ISEF should distribute funds in a
fair and equitable manner that gives all students equal opportunities
to receive a quality education. The Committee believes that certain
administrative changes are necessary at the local school and Bureau of
Indian Affairs level to provide more educational opportunity to the
students served by the Bureau-funded school system.
The Committee cannot emphasize strongly enough the importance of
careful consideration of these proposed rules by Bureau-funded schools,
tribes with members who attend Bureau-funded schools, and parents and
students served by Bureau-funded schools. The Committee strongly
encourages anyone who has an interest in these proposed rules to submit
public comments that the Committee may consider when finalizing the
rules.
V. Part 42--Student Rights
Section 1136 of Title IX of the Act required the Secretary to
prescribe rules to ensure the constitutional and civil rights of Indian
students attending Bureau-funded schools, including rights to privacy,
freedom of religion and expression, and due process in connection with
disciplinary actions, suspension, and expulsion.
Section 42.1. This section provides objectives and guidance for
school boards when determining how to apply student rights and due
process. It lists only the minimal considerations a school should make
to fulfill the due process and student rights obligation owed to
students. The following objectives may also be considered: Providing
students with a safe learning environment, the opportunity to observe
Native customs and practices (consistent with health, safety, and
welfare), and an education provided by educators trained in Native
pedagogies. The absence of these objectives from the regulation was due
to an understanding that in some circumstances consideration of the
objective could not be made or would be inappropriate. Wherever
possible to the extent practicable school boards should aspire to give
consideration to the aforementioned objectives omitted from the
regulation.
Section 42.2. This section prescribes the minimum rights to which
all students at Bureau-funded schools are entitled. Where possible or
applicable, a school may provide more rights than required by this
rule. Nothing in this section limits existing student rights provided
in the Constitution, school board policies, or elsewhere. This section
should be read in conjunction with the stated purpose for the rule and
the preamble explaining that purpose.
Section 42.3. This section prescribes how schools are to apply the
due process obligations. It was the group's desire that the rule be
interpreted so that a school board would apply Alternative Dispute
Resolution (ADR) first whenever possible. It was realized that some
situations would arise where use of ADR processes would not be
permitted under school board policies (i.e., offenses that merit
immediate suspension under school board policy or law). It was
understood that in some situations ADR would yield a ``consequence''
other than traditional forms of formal punitive actions (i.e.,
detention, suspension, expulsion).
It was the committee's desire that the school board work with the
student to ensure reintegration of the student into the school
community after using ADR
[[Page 8761]]
processes. The group understood reintegration to mean returning the
student to regular student status after the student allegedly or
actually committed a violation. Where ADR and subsequent reintegration
of a student are not possible, the school could then apply traditional
formal disciplinary procedures.
The committee wants schools to be permitted to craft their own
processes for dealing with violations of school policies. It was also
recognized that some of the processes schools used to address student
violations were not formal disciplinary actions. Often schools wish to
apply ADR processes first or instead of more formal proceedings.
In circumstances where ADR cannot be used, a school may immediately
apply formal disciplinary proceedings. The goal of any process used to
address violations of school policies should be returning the student
to active student status as quickly as possible.
Section 42.4. In this section the group attempted to provide
guidance on what was meant by ADR processes. The objective of this
section was to present examples of alternatives to traditional forms of
formal punitive actions typically applied to violations of school
policies. Specifically, tribal forms of dispute resolution could be
used in place of formal disciplinary processes. It was realized that
ADR processes would not always result in traditional forms of formal
punitive actions (i.e., detention, suspension, expulsion). Outcomes of
ADR processes were not to be discredited merely due to a resolution
that applied alternative ``consequences.''
Section 42.5. In this section the group provided guidance on when
it was appropriate to apply ADR techniques in place of more formal
disciplinary proceedings. Ultimately, the school board has the
discretion to determine what process to apply and when. This section
provides points schools should consider in making their determinations.
(a) A school may decide whether use of ADR is appropriate under the
circumstances. Where possible, ADR should be used before formal
disciplinary proceedings.
(b) Where articulated policy or law clearly defines immediate
consequences, a school may not discretionarily apply ADR processes.
(c) Although the committee prefers that school boards apply ADR
processes first, use of ADR procedures in every circumstance is not
required.
Section 42.6. This section prescribes the rights to which all
students are entitled in disciplinary proceedings. School boards should
strive to provide students as much information and time as is necessary
to defend themselves against allegations of disciplinary violations.
School boards may not limit the amount of due process provided to a
student in disciplinary actions. The group felt it essential that the
accused student be provided the maximum due process available. Due
process demands that all students be provided a fair and impartial
hearing for all alleged violations of school policies. In certain
situations immediate punishment may be applied, but due process must
not be diminished merely because punishment has already begun.
(a) Schools must give students written notice of charges within a
reasonable time. Reasonable time is notice provided promptly after the
charges have been made.
(1) The copy of the regulation that the student is charged with
violating must be the same language provided in the most recent copy of
student policies and guidelines issued to students by the school.
(2) The school must inform the student of sufficient facts that
constitute the alleged violation so the student may defend the
allegation.
(3) Any information the school obtains leading to or arising from
any charge must be made available to the accused student.
(4) A student must be informed if the school intends to consider
any portion of the student's record in disciplinary decisions.
(b) Generally, the school must provide a student a full due process
hearing before the student is punished.
(1) There exist certain offenses for which school policy or law
requires immediate punishment. In these circumstances, this rule is not
intended to prevent those school policies or laws from applying.
Rather, the punishment may be effective immediately in a temporary
manner pending full hearing.
(2) In rare cases of emergency situations not addressed by school
policy or law, immediate removal of the student may be necessary for
the protection of the accused student, student body, or school faculty.
In such rare instances the school should not be prevented from removing
the student posing the emergency risk.
(3) A student may always elect to waive all or a part of the due
process hearing rights to which the student is entitled.
(c) It was recognized that emergency situations will arise that
merit immediate action by the school board.
(1) Any emergency removal of the student from the active student
body will be deemed temporary until provision of a hearing affording a
student all due process rights.
(2) All actions taken by a school against a student accused of
violating school policy must be documented in writing for the student's
record immediately after the action is taken.
(3) A school must provide a student a hearing proving the student
full due process rights within 10 days of any disciplinary action. The
time may be delayed only upon motion of the student and upon showing of
good cause.
Section 42.7. This section outlines the minimum due process
procedures a school must provide to a student accused of school policy
violations. Nothing in this section should be read as precluding a
school board from providing additional protections to those enumerated
in the proposed rule. If possible, the rules should be interpreted in a
manner favoring the accused student.
(a) All students have the right to have a parent or guardian
present during hearings for disciplinary violations. If the student is
the age of majority, the student may waive the right to have a parent
present. ``Parent or guardian'' should be read broadly to include any
adult, other than boarding school personnel, who is the equivalent to a
parental authority over the student, or any adult who is head of the
household where the accused student primarily resides.
(b) Students have the right to be represented by an adult in
addition to their parent at disciplinary proceedings. It was not
intended that a student should be entitled to receive funding from the
school board or the Federal government to pay for this representation.
``Counsel'' as used in the rule is not limited to legal counsel.
Generally the person selected as ``counsel'' must act as a
representative of the student in the disciplinary proceeding and should
generally be familiar with the disciplinary process of the school
board.
(c) Accused students have the right to produce and have produced
witnesses and confront and examine all witnesses.
(d) A student must be provided all information concerning hearings
addressing violations of school policies. While this rule does not
specifically require additional school record development, the student
is entitled to any records or documents that the school board makes in
conjunction with the disciplinary proceeding. The right to certain
records does not require
[[Page 8762]]
disclosure of documents otherwise privileged under attorney client
privilege.
(e) A student must be given the opportunity to appeal any decision
concerning violations of school possible. The group hearing the appeal
must not be the group that issued the original decision.
(f) A school may not require that the student testify against
himself for the purpose of finding him guilty. If, however, the student
elects to so testify, then the student's statements may be used to
affirm allegations of school policy violations.
(g) When a student is not found guilty of alleged violations of
school policy, the student's record must not reflect the allegation.
Prior allegations of school policies for which a student is not found
guilty should not be used against the student in future proceedings.
Section 42.8. This section provides objectives for consideration of
victims' rights. Where possible and appropriate, the rights of the
victim should be afforded consideration in hearings addressing
violations of school policies. While consideration of victims' rights
is an aspiration and creates no enforceable right for the victim, it
was desired that schools make every effort possible to afford victims
rights in disciplinary proceedings.
Section 42.9. A school must develop a handbook and make that
handbook available to students annually. Changes in school policy do
not become effective for the purpose of disciplining a student under
the changed policy until the student body is notified of the change in
writing.
(a) The handbook must clearly explain all school policies to place
all students on notice of expected conduct and actions which constitute
violations of school policy.
(b) All staff must be informed of school policies to ensure that
violations are properly reported and proper conduct does not subject
students to unnecessary charges.
(c) Students and parents, guardians, or other persons providing
primary care for students shall be given copies of the student handbook
for their reference. In the case of students attending boarding
schools, it is not sufficient to provide only dorm staff with the
handbook; parents or other caregivers must also be provided copies.
(d) To the extent possible, students, school staff, and parents or
guardians should confirm in writing receipt of the student handbook.
Such practices will ensure both that schools strive to keep students,
staff and others informed of school policies as well as assist the
school in establishing that the student was aware of the policy
allegedly violated.
VI. Part 44--Grants Under the Tribally Controlled Schools Act
In section 1127 of the Act, Congress authorized the Secretary to
promulgate only rules that: (1) Are necessary to ensure compliance with
the Act and (2) Comply with section 5211 of the Tribally Controlled
Schools Act of 1988. The Act amended the Tribally Controlled Schools
Act of 1988 by striking sections 5202 through 5212 and inserting new
sections. New section 5210 specifically provides that:
The Secretary is authorized to issue rules relating to the
discharge of duties specifically assigned to the Secretary in this
part. For all other matters relating to the details of planning,
developing, implementing, and evaluating grants under this part, the
Secretary shall not issue rules.
In developing proposed rules, the Committee reviewed each section
of the Tribally Controlled Schools Act to determine whether the section
pertained to the discharge of the Secretary's duties. If it did, then
the Committee considered whether the statutory provision was clear
without the need for rules. If so, then the Committee chose not to
draft rules.
At the outset, the Committee was especially mindful of Congress'
Declaration of Policy found in section 5202 of The Act. The Committee
used the declaration, including the recognition of the importance of
self-determination, the commitment to Indian education, and the
national goal and education needs.
Specifically, the Committee considered the declaration at section
5202(a), where Congress:
Recognizes that the Indian Self-Determination and Education
Assistance Act was the product of the legitimate aspirations and a
recognition of the inherent authority of Indian nations, was and is
a crucial step positive step toward tribal and community control and
that the United States has an obligation to assure maximum
participation in the direction of education services so as to render
the persons administering such services and the services themselves
more responsive to the needs and the desires of Indian communities.
The Committee also specifically considered that Congress made the
following commitment in section 5202(b) of The Act:
Congress declares its commitment to the maintenance of the
Federal Government's unique and continuing trust relationship with
and responsibility to the Indian people for the education of Indian
children through the establishment of a meaningful Indian self-
determination policy for education that will deter further
perpetuation of Federal bureaucratic domination of programs.
The Committee also used Congress' declaration of a national goal of
the United States in section 5202(c):
Congress declares that a national goal of the United States is
to provide the resources, processes, and structure that will enable
tribes and local communities to obtain the quantity and quality of
educational services and opportunities that will permit Indian
children (1) to compete and excel in the areas of their choices; and
(2) to achieve the measure of self-determination essential to their
social and economic well-being.
The Committee considered that Congress also affirmed the
educational needs of Indian students in section 5202(d) of The Act when
it stated:
Congress affirms (1) true self-determination in any society of
people is dependent upon an education process that will ensure the
development of qualified people to fulfill meaningful leadership
roles; and (2) that Indian people have special and unique
educational needs, including the need for programs to meet the
linguistic and cultural aspirations of Indian tribes and
communities; and (3) that those needs may be best met through a
grant process.
Fully considering the directives of Congress, the Committee turned
to each section of the Tribally Controlled Schools Act, to determine
which sections needed rules.
In section 101, the Committee re-affirmed that the statute and
rules principally applied to the grantee and that guidelines, manuals,
and policy directives of the Bureau only applied if agreed to by the
grantee. Section 102, re-affirmed that the rules do not affect existing
tribal rights. Section 103 provides the eligibility requirements found
in section 5203 and 5205 of the The Act.
Section 104 provides for the three methods by which a grant can be
terminated. These methods are found in section 5203(f) B retrocession;
5206(c) B revocation of eligibility; and 5208(12) reassumption. Section
105 implements section 5203(f), section 106 implements section 5206(c),
and section 107 implements section 5208(12).
Section 108 implements section 5207, which requires that payments
be made to the grantee in two annual payments. However, the Committee
is recommending that annual payments be made to all Bureau-funded
schools. This section will be amended in the final rule to reflect the
final rule for payments. This section also reiterates the statutory
requirement that the Prompt Payment Act applies to grant payments.
Section 109 implements section 5207(a)(2) regarding excess funding.
[[Page 8763]]
In section 5208 of the The Act, Congress specifically incorporated
into the Tribally Controlled Schools Act certain sections of the Indian
Self-Determination and Education Assistance Act (ISDEAA), as amended.
Section 110 incorporates those sections of the 25 CFR part 900 that
implement the incorporate sections of the ISDEAA. In addition, the
Committee considered whether the ``common-rule,'' 43 CFR part 12,
applied to grantees except in the construction context. The Committee
examined 25 U.S.C. 2503(b)(4)(B), section 5204 of The Act, and believed
that the 43 CFR part 12 does not apply to grantees. However, some
members of the Committee raised concerns that without the common rule,
there were no standards for financial, property, or procurement
management. To address these concerns, the Committee incorporated
subpart E of part 900, ``Standards for Tribal or Tribal Organization
Management Systems.''
Finally, section 111 reiterates that the Federal Torts Claims Act
applies to grant schools.
Overall, the Committee felt that the Tribally Controlled Schools
Act of 1988, as amended by the The Act, needed very few rules. The
Committee was true to Congress' directive that the rules only pertain
to the discharge of the Secretary's duties. Moreover, the Committee
believed that if the statute was clear, no implementing rules were
necessary.
VII. Part 47--Uniform Direct Funding and Support
Section 1130 of the Act specifically requires the Secretary to
establish by regulation a system for the direct funding and support of
all Bureau-funded schools. This system must allot funds in accordance
with section 1127 of the Act. A subgroup of the committee reviewed the
current rules in 25 CFR 39.50 and determined that the rules did not
need any substantive changes. The subgroup put the current regulation
in plain language and presented it to the committee as a whole. The
committee as a whole accepted the plain language version of the uniform
direct funding rules with little discussion.
VIII. Procedural Matters
Regulatory Planning and Review (E.O. 12866)
This document is a significant rule and the Office of Management
and Budget (OMB) has reviewed the rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. The rule deals exclusively with student rights, does not
pertain to funding, and is not expected to have an effect on budgets.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
has been prepared in consultation with the U.S. Department of
Education.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule spells out student rights, the procedures
for their dissemination, and the procedures for implementing them. The
rule does not pertain to funding and is not expected to have an effect
on budgets.
(4) This rule raises novel legal or policy issues. The rule
proposes entirely new procedures related to determining adequate yearly
progress, school boundaries, funding, and other issues. It also updates
existing procedures addressing student rights and adapts the existing
rules to comply with current law and policy.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Funding for Indian education programs has averaged about $350 million
in grants annually over the last ten years. The ``No Child Left
Behind'' legislation, which these proposed rules are designed to
implement, will provide no additional funding, but merely reallocates
current funding. Since grants redistribute wealth, they have no impact
on aggregate employment and prices unless the allocation of the grant
money produces incentives that result in an employment, income, or
price effect in excess of $100 million annually. Although the purpose
of this rule is to change the formula for distributing grant money, BIA
does not have sufficient information to evaluate the extent to which
the proposed regulation may change the incentives associated with new
proposed formula. However, based on the new proposed formula, school
districts may face incentives to report or count students differently
than under the existing formula. Regardless of the extent to which
incentives may shift, the Secretary believes that the changes would not
result in changes in employment, income, or prices in the economy.
Costs and Benefits
The proposed formula for distributing the grant money was
determined in negotiation with the grant recipients to ensure that
maximum benefits are obtained at the local level. The approximate
distribution of grants by instructional programs under the current
distribution formula and under the proposed new formula is shown in
Table 1. Although the distribution of grants under the new formula is
not precisely known, the expected distribution is also shown in Table
1. Table 2 shows the effect on grants allocated by State under the
current and proposed formula.
Table 1.--Effect on Grant Allocation by Program
[Percent]
------------------------------------------------------------------------
Approximate Proposed
Program current formula
allocation allocation
------------------------------------------------------------------------
Instructional Programs:
Basic............................... 68.2 59.0
Exceptional Child................... 2.5 10.4
Bilingual........................... 6.2 6.8
Gifted & Talented................... 5.6 5.5
-----------------
Total Instructional............. 82.6 81.6
=================
Residential Programs Basic.............. 11.6 18.4
[[Page 8764]]
Intensive Residential Guidance...... 2.9 0.0
Exceptional Child................... .1 0.0
-----------------
Total Residential............... 17.6 18.4
=================
Total....................... 100.0 100.0
------------------------------------------------------------------------
Table 2.--Effect on Grant Allocation by State
[Percent]
------------------------------------------------------------------------
Approximate Proposed
State current formula
allocation allocation
------------------------------------------------------------------------
Arizona................................. 27.4 27.8
California.............................. 2.6 2.6
Florida................................. .4 .4
Iowa.................................... .3 .2
Idaho................................... .2 .4
Kansas.................................. .2 .2
Louisiana............................... .1 .1
Maine................................... .5 .5
Michigan................................ .5 .5
Minnesota............................... 1.5 1.5
Mississippi............................. 3.6 3.4
Montana................................. .8 .8
North Carolina.......................... 2.2 2.1
North Dakota............................ 8.0 7.8
New Mexico.............................. 24.2 24.3
Nevada.................................. .2 .3
Oklahoma................................ 3.8 3.8
Oregon.................................. 1.6 1.6
South Dakota............................ 16.7 16.5
Utah.................................... .9 .9
Washington.............................. 2.4 2.5
Wisconsin............................... 1.5 1.5
Wyoming................................. .4 .4
-----------------
Total............................... 100.0 100.0
------------------------------------------------------------------------
These provisions will allow school districts to use Federal funds
in a manner more consistent with their own reform strategies and
priorities. While most of the benefits of the new law are conveyed by
the statute, the regulations proposed through this notice could also
result in cost savings, by allowing flexibility in adopting assessment
systems composed entirely of locally developed and administered tests.
Data limitations make it difficult to estimate the magnitude and timing
of any potential cost savings. However, given the new flexibilities
associated with the proposed regulation, the Secretary has concluded
that these regulations are likely to have positive net benefits.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million
or more on budgets.
(2) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State or local government
agencies, or geographic regions. The rule proposes new procedures
related to determining adequate yearly progress, school boundaries,
funding, and other issues. It also updates existing procedures
addressing student rights and adapts the existing rules to comply with
current law and policy. The rule does not pertain to funding and is not
expected to have an effect on budgets. The rule is not expected to have
a perceptible effect on costs or prices.
(3) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
rule proposes new procedures related to determining adequate yearly
progress, school boundaries, funding, and other issues. It also updates
existing procedures addressing student rights and adapts the existing
rules to comply with current law and policy. The rule does not pertain
to funding and is not expected to have an effect on budgets.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule proposes new procedures related to determining adequate
yearly progress, school boundaries, funding, and other issues. It also
updates existing procedures addressing student rights
[[Page 8765]]
and adapts the existing rules to comply with current law and policy.
The procedures for dissemination of student rights through student
handbooks are consistent with current practices. The procedures for
implementing student rights through hearings and alternative dispute
resolution processes are consistent with current practices. The rule is
not expected to mandate additional costs on tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. Nothing in the rule proposes rules of
private property rights, constitutional or otherwise, or invokes the
Federal condemnation power or alters any use of Federal land held in
trust. The focus of this rule is civil rights and due process rights. A
takings implication assessment is not required.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. Nothing in this rule has substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This rule does
not implicate State government. Similar to federalist concepts, this
rule leaves to local school board discretion those issues of student
civil rights and due process that can be left for local school boards
to address. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Consultation With Indian Tribes (E.O. 13175)
In accordance with Executive Order 13175, we have identified
potential effects on federally recognized Indian tribes that will
result from this rule. This rule will require Tribally operated schools
to observe student rights and procedures spelled out in the rule.
Accordingly:
(1) We have consulted with the affected tribe(s) on a government-
to-government basis. The consultations have been open and candid to
allow the affected tribe(s) to fully evaluate the potential effect of
the rule on trust resources.
(2) We will fully consider tribal views in the final rule.
(3) We have consulted with the appropriate bureaus and offices of
the Department about the political effects of this rule on Indian
tribes. The Office of Indian Education Programs and the Office of the
Assistant Secretary--Indian Affairs have been consulted.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the Department is requesting comments on the information
collection incorporated in this proposed rule. Comments on this
information must be received by March 26, 2004, via facsimile or e-mail
transmittal to: Desk Officer for the Department of the Interior, Office
of Information and Regulatory Affairs, 202/395-6566 (facsimile) or
OIRA_DOCKET@omb.eop.gov.
Comments are invited on: (1) Whether the collection of information
is necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (2) the
accuracy of the agency's estimate of the burden including the validity
of the methodology and assumption used; (3) ways to enhance the
quality, utility, and clarity of the information collected; and (4)
ways to minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology. The information collection will
be used to enable BIA to better administer the No Child Left Behind
program subject to this rulemaking. In all instances, the Department
has strived to lessen the burden on the public and ask for only
information that is absolutely essential to the administration of the
programs affected and in keeping with the Department's fiduciary
responsibility to federally recognized tribes.
Under 25 CFR part 39, OMB clearance has already been given under
OMB Control Number 1076-0122 for the information required of Indian
schools to document student attendance and classification for
participation in certain special programs. In addition, OMB has
approved certain transportation information in reporting off-
reservation school mileage estimates, also in 25 CFR part 39, under
Control Number 1076-0134.
A synopsis of the new information collection burdens for parts 30,
37, 39, 42, 44 and 47 is provided below. Burden is defined as the total
time, effort, or financial resources expended (including any filing
fees) by persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR section Number Responses per response (in Total annual burden/cost
Respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
30.104(a)(1), Submit Notification............. 6 1 1 6 hours/$72.00
30.104(b), Submit Waiver...................... 7 1 11 77 hours/$924.00
30.106, Submit proposal for alternative AYP... 20 1 1 20 hours/$240.00
30.107, Form Requirements..................... 20 1 480 9,600 hours/$115,200.00
30.110, Submit Request for technical 20 1 2 40 hours/$480.00
assistance.
30.118, Submit Evidence....................... 85 1 40 3,400 hours/$40,800.00
-----------------
Totals.................................... .............. .............. .............. 13,143/$157,716.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note: For purposes of this part, we recognize 184 bureau- and
tribally-operated schools and peripheral dormitories. From this
number we have extrapolated the number of likely respondents per
information collection requirement. The cost of reporting and
recordkeeping by the public is estimated to be approximately $12/
hour. We have used this figure as a medium figure that would
indicate the cost of having a form (or form requirements) completed,
the cost of taking an hour's time off work, the cost of using one's
vehicle, time spent on the activity, and other miscellaneous costs
that may be associated with obtaining the information needed to
fulfill this part's information collection requirements.]
[[Page 8766]]
Summary
Section 30.104(a)(1) What Is the Secretary's Definition of Adequate
Yearly Progress?
Where the tribal school is in more than one State, because of
reservation geographic boundaries, the tribal governing body or school
board may choose the State definition it desires for ``Adequate Yearly
Progress.'' This is realized through a written communication to the
Secretary. It is estimated that there are only 6 schools within 2
tribes that would have this option to choose between or among State
definitions for AYP. It is estimated that it would take the tribal
governing body or school board 1 hour to complete this notification
through a letter to the Secretary.
Burden hours = number of schools with this option (6) x 1 hour to
send letter to the Secretary = 6 total annual burden hours at a cost of
$72.00 to the public.
Section 30.104(b) What is the Secretary's Definition of Adequate Yearly
Progress?
The tribal governing body or school board may seek a waiver that
may include developing their own definition of AYP, or adopting or
modifying an existing definition of AYP that has been accepted by the
U.S. Department of Education. The average number of schools that would
ask for this waiver is estimated to be not more than 7 schools. To
submit this waiver request for an alternative definition of AYP, the
school would take approximately 11 hours to complete.
Burden hours = 7 schools x 11 burden hours = 77 total annual burden
hours at a cost of $924.00 to the public.
Section 30.106 How Does a Tribal Governing Body or School Board Propose
an Alternative Definition of AYP?
The tribal governing body or the school board may decide that the
Secretary's definition of AYP is otherwise inappropriate. It may then
propose an alternative definition of AYP by submitting a proposal to
the Secretary. The physical act of submitting the proposal would only
entail a hour's time. It is estimated that only 20 schools, on average,
would propose an alternative definition of AYP.
Burden hours = 20 schools x 1 burden hour = 20 total annual burden
hours at a cost of $240.00 to the public.
Section 30.107 What Must a Tribal Governing Body or School Board
Include in Its Alternative Definition of AYP?
This section illustrates the form requirements that a tribal
governing body or school board must fulfill in completing its proposal
for an alternative definition of AYP. It is estimated that it would
take an average of 20 schools making such a proposal approximately 480
hours or 3 months to complete the requirements of this section.
Burden hours = 20 schools x 480 burden hours = 9,600 total annual
hours at a cost of $115,200 to the public.
Section 30.110 What Is the Process for Requesting Technical Assistance
To Develop an Alternative Definition of AYP?
The tribal governing body or the school board must submit a written
request to the Director of OIEP if it desires to have technical
assistance in developing an alternative definition of AYP. It is
estimated that an average of 20 schools would be making this request,
the same average of schools requesting an alternative definition of
AYP, since this assistance is available. In submitting this written
request, it is estimated that, at a minimum, a meeting of the tribal
governing body or the school board would have to take place to discuss
the request and then qualify the parameters of this assistance in a
letter then sent to the Director of OIEP. It would take up to 2 hours
to complete this administrative task.
Burden hours = 20 schools x 2 burden hours = 40 total annual burden
hours at a cost of $480 to the public.
Section 30.118 Can a Bureau-Funded School Present Evidence Before It Is
Identified for School Improvement, Corrective Action, or Restructuring?
The tribal governing body or school board may present evidence that
it should not be identified for school improvement, corrective action,
or restructuring. There are 184 bureau-funded schools and peripheral
dormitories. Only 170 have academic programs subject to school
improvement, corrective action, or restructuring. Out of the 170
bureau-operated schools, it is estimated that approximately half (85)
would seek to present such evidence. To compile the evidence necessary
to make its case, it is further estimated that it would take
approximately 40 hours (a good work week) to fulfill this requirement.
Burden hours = 85 schools x 40 hours = 3,400 total annual burden hours
for a cost of $40,800 to the public.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR section Responses per response (in Total annual burden/cost
Respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
37.122(b), Propose Change in geographic 2 1 1 2 hours/$24.00
boundaries.
37.123(c), Submit tribal approval to change 2 1 1 2 hours/$24.00
geographic boundaries.
-----------------
Totals.................................... .............. .............. .............. 4/$48.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note: For purposes of this part, we recognize 184 bureau- and
tribally-operated schools and peripheral dormitories. From this
number we have extrapolated the number of likely respondents per
information collection requirement. The cost of reporting and
recordkeeping by the public is estimated to be approximately $12/
hour. We have used this figure as a medium figure that would
indicate the cost of having a form (or form requirements) completed,
the cost of taking an hour's time off work, the cost of using one's
vehicle, time spent on the activity, and other miscellaneous costs
that may be associated with obtaining the information needed to
fulfill this part's information collection requirements.]
Summary
Section 37.122(b) Once Geographic Attendance Boundaries Are
Established, How Can They Be Changed?
Tribal governing bodies and school boards may change their
attendance boundaries now. This rulemaking does not otherwise impact on
this ability. We
[[Page 8767]]
have estimated, for purposes of information collection authority, that
there can be approximately two such requests per year. Submitting a
letter to the Secretary for this consideration would entail only 1
hour's time to effectively transmit such a letter.
Burden hours = 2 schools x 1 burden hours = 2 total annual burden hours
at a cost of $24.00 to the public.
Section 37.123 How Does a Tribe Develop Proposed Geographic Attendance
Boundaries or Boundary Changes?
A tribal governing body establishes its own process for developing
proposed geographic attendance boundary or boundary changes. Once this
has been accomplished, it must submit a document which represents that
body's approval to the Secretary for consideration of such change. No
tribe has ever attempted to change its attendance boundary and,
consequently, no tribe has developed these in-house processes. However,
for purposes of information collection authority, we have estimated
that approximately two tribes could make such a request each year. This
administrative activity would not entail more than 1 hour's time.
Burden hours = 2 tribes x 1 burden hour = 2 total annual burden hours
at a cost of $24.00 to the public.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR section Number Responses per Response (in Total annual burden/cost
respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
39.410, Submit Certification of conflict of 10 1 1.5 15 hours/$180.00
interests review.
39.502, Submit request for contingency funds 30 1 1 30 hours/$360.00
to ELO.
-----------------
Totals.................................... .............. .............. .............. 45/$540.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note: For purposes of this part, we recognize 184 bureau- and
tribally-operated schools and peripheral dormitories. From this
number we have extrapolated the number of likely respondents per
information collection requirement. The cost of reporting and
recordkeeping by the public is estimated to be approximately $12/
hour. We have used this figure as a medium figure that would
indicate the cost of having a form (or form requirements) completed,
the cost of taking an hour's time off work, the cost of using one's
vehicle, plus time spent on the activity, and other miscellaneous
costs that may be associated with obtaining the information needed
to fulfill this part's information collection requirements.]
Summary
Section 39.410 What Qualifications Must an Audit Firm Meet To Be
Considered for Auditing ISEP Administration?
It is estimated that only 10 firms would be required to submit a
conflict of interest certification during any given school year for
purposes of general audit. It is further estimated that this
administrative task would take approximately 1.5 hours to complete.
Burden hours = 10 certified public accountant firms x 1.5 hours = 15
hours at a cost of $180.00 to the public.
Section 39.502 How Does a School Apply for Contingency Funds?
A school must submit a request to the ELO for contingency funds.
From past experience, it is estimated that approximately 30 schools
would make such a request. Since there is nothing more involved than
submitting a written request to the ELO, it is further estimated that
it would take only 1 hour to complete this administrative task.
Burden hours = 30 schools x 1 burden hour = 30 total annual burden
hours at a cost of $360 to the public.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR section Number of Responses per response (in Total anual burden/cost
respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
42.6, Form Requirement. Provide written notice 120 3 .5 180 hours/$2,160.00.
of charges.
42.7, Provide copy of hearing of record....... 120 3 3 1,080 hours/$12,960.00.
42.9, Provide student handbook................ 120 1 .25 30 hours/$360.00.
-----------------
Totals.................................... .............. .............. .............. 1,290/$15,480.00.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note:
For purposes of this part, we recognize 184 bureau- and
tribally-operated schools and peripheral dormitories. From this
number we have extrapolated the number of likely respondents per
information collection requirement. The cost of reporting and
recordkeeping by the public is estimated to be approximately $12/
hour. We have used this figure as a medium figure that would
indicate the cost of having a form (or form requirements) completed,
the cost of taking an hour's time off work, the cost of using one's
vehicle, plus time spent on the activity, and other miscellaneous
costs that may be associated with obtaining the information needed
to fulfill this part's information collection requirements.]
Summary
Section 42.6 What Does Due Process in a Formal Disciplinary Proceeding
Include?
The student charged with any infraction of the school code which
would lead to a disciplinary proceeding must receive a formal statement
of such charges. This a burden accruing to tribally-operated schools.
Since every school may have one infraction (some have no reported
disciplinary events and some may have several events), we have used the
number of tribally-operated Indian schools (120) as the number of
respondents. Providing the student with charges is an administrative
task that should not take longer than one-half hour to successfully
complete.
Burden hours = 120 schools x 3 responses x \1/2\ burden hour = 180
total annual burden hours for a cost
[[Page 8768]]
to the government and/or tribal governing body or school board of
$2,160.
Section 42.7 What Are a Student's Due Process Rights in a Formal
Disciplinary Proceeding?
The student is entitled to a copy of the hearing of record. For
transcription, photo-copying, and delivery, it is estimated that this
administrative task could take as long as 3 hours to successfully
complete.
Burden hours = 120 schools x 3 responses x 3 burden hours = 1,080 total
annual burden hours for a cost to the government and/or tribal
government body or school board of $12,960.
Section 42.9 How Must the School Communicate Individual Student Rights
to Students, Parents or Guardians, and Staff?
The school must provide a handbook to the affected entities setting
out the school's code of conduct. All of the existing bureau- and
tribal-operated schools have such handbooks, so this information
distribution concerns making the handbook available to all concerned, a
relatively simple task of \1/4\ hour to make copies available at a
site-specific location.
Burden hours = 120 schools x .25 burden hours = 30 total annual burden
hours for a cost to the government and/or tribal governing body or
school board of $360.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR section Number of Responses per response (in Total annual burden/cost
respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
44.105, Provide written notice of 1 1 1 1 hour/$12.00
retrocession.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note:
For purposes of this part, we recognize 184 bureau- and
tribally-operated schools and peripheral dormitories. From this
number we have extrapolated the number of likely respondents per
information collection requirement. The cost of reporting and
recordkeeping by the public is estimated to be approximately $12/
hour. We have used this figure as a medium figure that would
indicate the cost of having a form (or form requirements) completed,
the cost of taking an hour's time off work, the cost of using one's
vehicle, plus time spent on the activity, and other miscellaneous
costs that may be associated with obtaining the information needed
to fulfill this part's information collection requirements.]
Summary
Section 44.105 How Does a Tribal Governing Body Retrocede a Program to
the Secretary?
The tribal governing body must provide written notice to BIA that
it wishes to retrocede a program. This happens rarely, so we have used
one respondent tribe per year as an example for information collection
authority. A simple written notice, in letter or memorandum form, would
only take approximately 1 hour to transmit to BIA.
Burden hours = 1 governing body x 1 burden hour = 1 total annual burden
or a cost of $12.00 to the public.
Estimated Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Burden per
CFR Section Number of Responses per response (in Total annual burden/cost
respondents respondent hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
47.5, Submit quarterly report to school board. 120 4 3 1,440 hours/$17,280
47.7, Notice of appeal........................ 120 1 1 120 hours/$1,440
47.9, Form Requirements, Financial Plan....... 120 1 2 240 hours/$2,880
47.10, Notice of Action on Financial Plan..... 120 1 1 120 hours/$1,440
-----------------
Totals.................................... .............. .............. .............. 1920/$23,040
--------------------------------------------------------------------------------------------------------------------------------------------------------
[Note:
For purposes of this part, we recognize 120 bureau- and tribal-
operated Indian schools. From this number we have extrapolated the
number of likely respondents per information collection requirement.
The cost of reporting and recordkeeping by the public is estimated
to be approximately $12/hour. We have used this figure as a medium
figure that would indicate the cost of having a form (or form
requirements) completed, the cost of taking an hour's time off work,
the cost of using one's vehicle, plus time spent on the activity,
and other miscellaneous costs that may be associated with obtaining
the information needed to fulfill this part's information collection
requirements. For purposes of this part only, we have used the
number of tribally operated schools (120) as the number of
respondents.]
Summary
Section 47.5 What Is the School Supervisor Responsible For?
The school supervisor must report at least quarterly (4 responses
per year) to the local school board on the amounts spent, obligated,
and currently remaining in funds budgeted for each program in the local
financial plan. In addition, he must maintain expenditure records in
accordance with financial planning system procedures. It is estimated
that this would take approximately 3 hours to complete successfully.
Burden hours = 120 schools x 1 supervisor x 4 responses x 3 burden
hours = 1,440 total annual burden hours or a cost to the public of
$17,280.00.
Section 47.7 What Are the Expenditures Limitations for Bureau-Operated
Schools?
If a Bureau-operated school and OIEP region or Agency support
services staff disagree over expenditures, the Bureau-operated school
must appeal to the Director for a decision. This appeal would take the
form of a memorandum and would take approximately 1 hour to complete
successfully.
Burden hours = 120 schools x 1 burden hour = 120 total annual burden or
a cost of $1,440.00 to the public.
[[Page 8769]]
Section 47.9 What Are the Minimum Requirements for the Local
Educational Financial Plan?
This is a form requirement for meeting the minimum standards of a
educational financial plan. All schools would have to comply with this
standard and it is estimated that it would take approximately 2 hours
to complete this planning document.
Burden hours = 120 schools x 2 burden hours = 240 total annual burden
hours at a cost of $2,880.00 to the public.
Section 47.10 How Is the Local Educational Financial Plan Developed?
The supervisor of each school must supervise the disposition of the
tentative allotment and express acceptance or otherwise to the ELO in a
timely fashion. This administrative task would take approximately 1
hour to convey such disposition.
Burden hours = 120 schools x 2 burden hours = 240 total annual burden
hours or a cost of $1,440.00 to the public.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required.
Clarity of This Regulation
Executive Order 12866 requires each agency to write rules that are
easy to understand. We invite your comments on how to make this rule
easier to understand, including answers to questions such as the
following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that
interferes with its clarity?
(3) Does the format of the rule (grouping and order of sections,
use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into
more (but shorter) sections? (A ``section'' appears in bold type and is
preceded by the symbol ``Sec. '' and a numbered heading; for example:
Sec. 42.2 What rights do individual students have?)
(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the proposed rule?
(6) What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may also e-mail the comments to this address: Exsec@ios.doi.gov.
Public Comment Solicitation
Although this rule is published by the Bureau of Indian Affairs,
the Bureau of Land Management is processing comments under agreement
with BIA. If you wish to comment on this proposed rule, you may submit
your comments by any one of several methods.
(1) You may mail comments to Director (630), Bureau of Land
Management, Eastern States Office, 7450 Boston Boulevard, Springfield,
Virginia 22153, Attention: RIN 1076-AE49.
(2) You may submit comments electronically by direct Internet
response to either http://www.blm.gov/nhp/news/regulatory/index.html, or
http://www.blm.gov.
(3) You may hand-deliver comments to 1620 L Street, NW., Room 401,
Washington, DC 20036.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record. We will honor the
request to the extent allowable by law. There may be circumstances in
which we would withhold from the rulemaking record a respondent's
identity, as allowable by law. If you wish us to withhold your name
and/or address, you must state this prominently at the beginning of
your comment. However, we will not consider anonymous comments. We will
make all submissions from organizations or businesses, and from
individuals identifying themselves as representatives or officials of
organizations or businesses, available for public inspection in their
entirety. You should submit comments on the information collections in
the proposed rule to: Interior Desk Officer (1076-AE49), Office of
Information and Regulatory Affairs, 202/395-6566 (facsimile); e-mail:
oira_docket@omb.eop.gov. You may submit comments until April 26, 2004,
but should submit them by March 26, 2004, in order to be assured of
consideration, because OMB may approve the information collections
after 30 days.
List of Subjects
25 CFR Parts 30, 37, 39, 44, and 47
Indians--Education, Schools, Elementary and Secondary education
programs, grant programs--Indians, Government programs--education.
25 CFR Part 42
Indians--Education, Schools, Students, Elementary and Secondary
education programs.
Dated: February 4, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.
For the reasons given in the preamble, the Bureau of Indian Affairs
proposes to amend parts 30, 37, 39, 42, 44, 47 of title 25 of the Code
of Federal Regulations as follows:
1. New part 30 is added to read as follows:
PART 30--ADEQUATE YEARLY PROGRESS
Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?
Subpart A--Defining Adequate Yearly Progress
30.102 Does the law require the Secretary of Interior to develop a
definition of AYP for bureau-funded schools?
30.103 Did the Committee consider a separate Bureau definition of
AYP?
30.104 What is the Secretary's definition of Adequate Yearly
Progress?
Alternative Definition of AYP
30.105 Can a tribal governing body or school board use another
definition of AYP?
30.106 How does a tribal governing body or school board propose an
alternative definition of AYP?
30.107 What must a tribal governing body or school board include in
its alternative definition of AYP?
30.108 May an alternative definition of AYP use parts of a State's
definition?
Technical Assistance
30.109 Will the Secretary provide assistance in developing an
alternative AYP definition?
30.110 What is the process for requesting technical assistance to
develop an alternative definition of AYP?
30.111 When should the tribal governing body or school board request
technical assistance?
Approval of Alternative Definition
30.112 How long does the Secretary have to review an alternative
definition?
30.113 What is the process the Secretary uses to review and approve
an alternative definition of AYP?
Subpart B--Assessing Adequate Yearly Progress
30.114 Which students must be assessed?
30.115 Which students' performance data must be included for
purposes of AYP?
30.116 If a school fails to achieve its objectives, what other
methods may it use to determine whether it made AYP?
[[Page 8770]]
Subpart C--Failure To Make Adequate Yearly Progress
30.117 What happens if a bureau-funded school fails to make AYP?
30.118 Can a bureau-funded school present evidence before it is
identified for school improvement, corrective action or
restructuring?
30.119 Who is responsible for implementing required remedial actions
at a bureau-funded school identified for school improvement,
corrective action or restructuring?
30.120 Are schools exempt from school choice and supplemental
services when identified for school improvement, corrective action,
and restructuring?
30.121 What funds are available to assist schools identified for
school improvement, corrective action, or restructuring?
30.122 Must the Bureau assist a school identified for school
improvement, corrective action, or restructuring?
30.123 What is the Bureau's role in assisting bureau-funded schools
to make AYP?
30.124 Will the Department of Education provide funds for schools
that fail to meet AYP?
30.125 What happens if a State refuses to allow a school access to
the State assessment?
Subpart D--Responsibilities and Accountability
30.126 What are the Bureau's reporting responsibilities?
30.127 How is the Bureau accountable to the Department of Education
for education funds and performance?
30.150 Information collection.
Authority: Pub. L. 107-11.
Sec. 30.100 What is the purpose of this part?
This part establishes for schools receiving Bureau funding a
definition of ``Adequate Yearly Progress'' (AYP). Nothing in this part:
(a) Diminishes the Secretary's trust responsibility for Indian
education or any statutory rights in law;
(b) Affects in any way the sovereign rights of tribes; or
(c) Terminates or changes the trust responsibility of the United
States to Indian tribes or individual Indians.
Sec. 30.101 What definitions apply to terms in this part?
OIEP means the Office of Indian Education Programs in the Bureau of
Indian Affairs.
School means a school funded by the Bureau of Indian Affairs.
Secretary means the Secretary of the Interior or a designated
representative.
Subpart A--Defining Adequate Yearly Progress
Sec. 30.102 Does the law require the Secretary of the Interior to
develop a definition of AYP for bureau-funded schools?
Yes, through negotiated rulemaking. In developing the Secretary's
definition of adequate yearly progress (AYP), the No Child Left Behind
Negotiated Rulemaking Committee (Committee) considered a variety of
options. In choosing the definition in Sec. 30.103, the Committee in
no way intended to diminish the Secretary's trust responsibility for
Indian education or any statutory rights in law. Nothing in this part:
(a) Affects in any way the sovereign rights of tribes; or
(b) Terminates or changes the trust responsibility of the United
States to Indian tribes or individual Indians.
Sec. 30.103 Did the Committee consider a separate Bureau definition
of AYP?
Yes, the Committee considered having the Bureau of Indian Affairs
develop a separate Bureau definition of AYP. For a variety of reasons,
the Committee reached consensus on the definition in Sec. 30.104. This
is in no way intended to diminish the United States' trust
responsibility for Indian education nor is it intended to give states
authority over Bureau-Funded schools.
Sec. 30.104 What is the Secretary's definition of Adequate Yearly
Progress?
The Secretary defines Adequate Yearly Progress as follows. The
definition meets the requirements in section 1111(b) of the Act.
(a) Until an alternative definition of AYP is proposed by the
tribal governing body or school board and approved by the Secretary,
the definition of AYP is that of the State where the school is located.
(1) If the geographic boundaries of the school include more than
one State, the tribal governing body or school board may choose the
State definition it desires. Such decision shall be communicated to the
Secretary in writing.
(2) This section does not mean that the school is under the
jurisdiction of the State for any purpose, rather a reference to the
State is solely for the purpose of using the State's assessment,
curriculum, academic standards, and definition of AYP.
(3) The use of the State's definition of AYP does not diminish or
alter the Federal Government's responsibility for Indian education.
(b) School boards or tribal governing bodies may seek a waiver that
may include developing their own definition of AYP, or adopting or
modifying an existing definition of AYP that has been accepted by the
Department of Education. The Secretary is committed to providing
technical assistance to a school, or a group of schools, to develop an
alternative definition of AYP.
Alternative Definition of AYP
Sec. 30.105 Can a tribal governing body or school board use another
definition of AYP?
Yes. A tribal governing body or school board may waive all or part
of the Secretary's definition of AYP and propose an alternative
definition under Sec. 30.106.
Sec. 30.106 How does a tribal governing body or school board propose
an alternative definition of AYP?
If a tribal governing body or school board decides that the
definition of AYP in Sec. 30.104 is inappropriate, it may decide to
waive all or part of the definition. Within 60 days of the decision to
waive, the tribal governing body or school board must submit to the
Secretary a proposal for an alternative definition of AYP. The proposal
must be consistent with section 1111(b) of the Act.
Sec. 30.107 What must a tribal governing body or school board include
in its alternative definition of AYP?
(a) The alternative definition of AYP must comply with the
requirements of section 1111(b) of the Act, which include the
following:
(1) Demonstrate that the school has adopted challenging academic
standards;
(2) Demonstrate that the school has an effective accountability
system that ensures that the school or schools will make adequate
yearly progress.
(b) The alternative definition of AYP must:
(1) Apply the same high standards of academic achievement to all
students;
(2) Be statistically valid and reliable;
(3) Result in continuous and substantial academic improvement for
all students;
(4) Measure the progress of all students based on a high-quality
assessment system that includes, at a minimum, academic assessments in
mathematics, reading or language arts and science and that meets the
requirements of paragraph (c) of this section;
(5) Establish a starting point;
(6) Create timelines for adequate yearly progress;
(7) Establish measurable objectives;
(8) Include intermediate goals for annual measurable progress; and
[[Page 8771]]
(9) Ensure annual improvement for the school.
(c) The measurement required by paragraph (b)(4) of this section
must meet both of the following criteria.
(1) The measurement must include separate measurable annual
objectives for continuous and substantial improvement for (unless
disaggregation of data cannot yield statistically reliable
information):
(i) The achievement of all students; and
(ii) The achievement of economically disadvantaged students;
students from major racial or ethnic groups, students with
disabilities, and students with limited English proficiency.
(2) The measurement must include graduation rates and at least one
other academic indicator for schools that do not have a 12th grade (but
may include more than one other academic indicator).
Sec. 30.108 May an alternative definition of AYP use parts of a
State's definition?
Yes, a tribal governing body or school board may take part of the
State's definition and propose to waive the remainder. The proposed
alternative definition of AYP must, however, include both the parts of
the State's AYP adopted and those parts the tribal governing body or
school board is proposing to change.
Technical Assistance
Sec. 30.109 Will the Secretary provide assistance in developing an
alternative AYP definition?
Yes, the Secretary through the Bureau, shall provide technical
assistance either directly or through contract to the tribal governing
body or the school board in developing an alternative AYP definition. A
tribal governing body or school board needing assistance must submit a
request to the Director of OIEP under Sec. 30.110. In providing
assistance, the Secretary may consult with the Secretary of Education
and may use funds supplied by the Secretary of Education in accordance
with section 6111 of the Act.
Sec. 30.110 What is the process for requesting technical assistance
to develop an alternative definition of AYP?
(a) The tribal governing body or school board requesting technical
assistance to develop an alternative definition of AYP must submit a
written request to the Director of OIEP, specifying the form of
assistance it requires.
(b) The Director of OIEP must acknowledge receipt of the request
for technical assistance within 10 days of receiving the request.
(c) No later than 30 days after receiving the original request, the
Director of OIEP will identify a point of contact. This contact will
immediately begin working with the tribal governing body or school
board to jointly develop the specifics of the technical assistance,
including identifying the form, substance, and timeline for the
assistance.
Sec. 30.111 When should the tribal governing body or school board
request technical assistance?
In order to maximize the time the tribal governing body or school
board has to develop an alternative definition of AYP and to provide
full opportunity for technical assistance, it is recommended that the
tribal governing body or school board request technical assistance
before formally notifying the Secretary of its intention to waive the
Secretary's definition of AYP.
Approval of Alternative Definition
Sec. 30.112 How long does the Secretary have to review an alternative
definition?
After receiving a completed proposed alternative definition of AYP,
the Secretary has 90 days to review and approve or disapprove the
definition.
Sec. 30.113 How does the Secretary review and approve an alternative
definition of AYP?
(a) The tribal governing body or school board submits a proposed
alternative definition of AYP to the Director, OIEP within 60 days of
its decision to waive the Secretary's definition.
(b) Within 30 days of receiving a proposed alternative definition
of AYP, OIEP notifies the tribal governing body or the school board
whether the proposed alternative definition is complete.
(c) If the proposed alternative definition is incomplete, OIEP
provides the tribal governing body or school board with technical
assistance to complete the proposed alternative definition of AYP,
including identifying what additional items are necessary.
(d) If the proposed alternative definition of AYP is determined to
be complete, the Department of Interior may notify the Department of
Education that it has received a proposed alternative definition of
AYP.
(e) The Secretary has 90 days from the date OIEP receives a
completed proposed alternative definition of AYP to determine whether
the alternative definition meets the requirements of section 1111(b) of
the Act.
(f) The Secretary reviews the proposed alternative definition of
AYP to determine whether it is consistent with the requirements of
section 1111(b) of the Act. This review must take into account the
unique circumstances and needs of the schools and students.
(g) The Secretary shall approve the alternative definition of AYP
if it is consistent with the requirements of section 1111(b) of the
Act, taking into consideration the unique circumstances and needs of
schools and students.
(h) If the Secretary approves the alternative definition of AYP:
(1) The Department shall promptly notify the tribal governing body
or school board; and
(2) The alternate definition of AYP will become effective at the
start of the following school year.
(i) The Department will disapprove the alternative definition of
AYP if it is not consistent with the requirements of section 1111(b) of
the Act. If the Department disapproves the definition, it shall, within
90 days of receiving the completed proposed alternative definition,
notify the tribal governing body or school board of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not
meet the requirements of section 1111(b) of the Act.
(j) If the Department denies a proposed definition under paragraph
(i) of this section, it shall provide technical assistance to overcome
the basis for the denial.
Subpart B--Assessing Adequate Yearly Progress
Sec. 30.114 Which students must be assessed?
All students in grades three through eight and one grade in high
school who are enrolled in a bureau-funded school must be assessed.
Sec. 30.115 Which students' performance data must be included for
purposes of AYP?
The performance data of all students in grades three through eight
and one grade in grades ten through twelve who are enrolled in a
bureau-funded school for a full academic year must be included for
purposes of AYP. ``Full academic year'' must be defined by the
Secretary or by an approved alternative definition of AYP.
Sec. 30.116 If a school fails to achieve its academic performance
objectives, what other methods may it use to determine whether it made
AYP?
If a school fails to achieve its academic performance objectives,
there are two other methods it may use to determine whether it made AYP
[[Page 8772]]
(a) Method A--``Safe Harbor.'' Under ``safe harbor,'' the following
requirements must be met:
(1) In each group that does not achieve the school's academic
performance objectives, the percentage of students who were below the
``proficient'' level of academic achievement decreased by 10 percent
from the proceeding school year; and
(2) The students in that group made progress on one or more of the
academic indicators; and
(3) The 95 percent assessment participation rate requirement is
met.
(b) Method B--Uniform Averaging Procedure. A school may use uniform
averaging. Under this procedure, the school may average data from the
school year with data from one or two school years immediately
preceding that school year and determine if the resulting average makes
AYP.
Subpart C--Failure To Make Adequate Yearly Progress
Sec. 30.117 What happens if a bureau-funded school fails to make AYP?
------------------------------------------------------------------------
Consecutive yrs of failing to Action required by
make AYP in same academic Status entity operating
subject school
------------------------------------------------------------------------
1st year of failing AYP....... No status change. Analyze AYP Data and
consider
consultation with
outside experts.
2nd consecutive year of School For the next academic
failing AYP. improvement. year, develop a plan
or revise an
existing plan for
school improvement
in consultation with
parents, school
staff and outside
experts.
3rd consecutive year of School Continue revising or
failing AYP. Improvement, modifying the plan
year two. for school
improvement in
consultation with
parents, school
staff and outside
experts.
4th consecutive year of Corrective Implement at least
failing AYP. Action, year one. one of the six
corrective actions
steps found in
section
1116(b)(7)(c)(iv) of
the Act.
5th consecutive year of Planning to Prepare a
failing AYP. Restructure. restructuring plan
and make
arrangements to
implement the plan.
6th consecutive year of Restructuring.... Implement the
failing AYP. restructuring plan
no later than the
beginning of the
school year
following the year
in which it
developed the plan.
7th consecutive year (and Restructuring.... Continue
beyond) of failing AYP. restructuring until
AYP is met for two
consecutive years.
------------------------------------------------------------------------
Sec. 30.118 Can a bureau-funded school present evidence before it is
identified for school improvement, corrective action, or restructuring?
Yes. The Bureau must give such a school the opportunity to review
the data and present evidence as set out in section 1116(b)(2) of the
Act.
Sec. 30.119 Who is responsible for implementing required remedial
actions at a bureau-funded school identified for school improvement,
corrective action or restructuring?
(a) For a Bureau-operated school, implementation of remedial
actions is the responsibility of the Bureau of Indian Affairs.
(b) For a tribally-operated contract school or grant school,
implementation of remedial actions is the responsibility of the school
board of the school.
Sec. 30.120 Are Bureau-funded schools exempt from school choice and
supplemental services when identified for school improvement,
corrective action, and restructuring?
Yes, bureau-funded schools are exempt from public school choice and
supplemental services when identified for school improvement,
corrective action, and restructuring
Sec. 30.121 What funds are available to assist schools identified for
school improvement, corrective action, or restructuring?
From fiscal year 2004 to fiscal year 2007, the bureau will reserve
4 percent of its Title I allocation to assist Bureau-funded schools
identified for school improvement, corrective action, and
restructuring.
(a) The bureau will allocate at least 95 percent of funds under
this section to bureau-funded schools identified for school
improvement, corrective action, and restructuring to carry out those
schools' responsibility under section 1116(b) of the Act. With the
approval of the school board the bureau may directly provide for the
remedial activities or arrange for their provision through other
entities such as school support teams or educational service agencies.
(b) In allocating funds under this section, the Bureau will give
priority to schools that:
(1) Are the lowest-achieving schools;
(2) Demonstrate the greatest need for funds; and
(3) Demonstrate the strongest commitment to ensuring that the funds
enable the lowest-achieving schools to meet progress goals in the
school improvement plans.
(c) Funds reserved under this section must not decrease total
funding for all schools below the level for the preceding fiscal year.
(d) The Bureau will publish in the Federal Register a list of
schools receiving funds under this section.
Sec. 30.122 Must the Bureau assist a school it identified for school
improvement, corrective action, or restructuring?
Yes, if a bureau-funded school is identified for school
improvement, corrective action, or restructuring, the Bureau must
provide technical or other assistance described in sections 1116(b)(4)
and 1116(g)(3) of the No Child Left Behind Act.
Sec. 30.123 What is the Bureau's role in assisting bureau-funded
schools to make AYP?
The Bureau must provide support to all bureau-funded schools to
assist them in achieving AYP. This includes technical assistance and
other forms of support.
Sec. 30.124 Will the Department of Education provide funds for
schools that fail to meet AYP?
To the extent that Congress appropriates other funds to assist
schools not meeting AYP, the Bureau will apply to the Department of
Education for these funds.
Sec. 30.125 What happens if a State refuses to allow a school access
to the State assessment?
(a) The Department will work directly with State officials to
assist schools in obtaining access to the State's assessment. This can
include direct communication with the Governor of the State. A bureau-
funded school may,
[[Page 8773]]
if necessary, pay a State for access to its assessment tools and
scoring services.
(b) If a State does not provide access to the State's assessment,
the bureau-funded school must submit a waiver for an alternative
definition of AYP.
Subpart D--Responsibilities and Accountability
Sec. 30.126 What are the Bureau's reporting responsibilities?
The Bureau has the following reporting responsibilities to the
Department of Education, appropriate committees of Congress, and the
public.
(a) In order to provide information about annual progress, the
Bureau must obtain from all bureau-funded schools the results of
assessments administered for all tested students, special education
students, students with limited English proficiency, and disseminate
such results in an annual report.
(b) The Bureau must identify each school that did not meet AYP in
accordance with the school's AYP definition.
(c) Within its annual report to Congress, the Secretary shall
include all of the reporting requirements of section 1116 (g)(5) of the
Act.
Sec. 30.127 How is the Bureau accountable to the Department of
Education for education funds and performance?
The Bureau is accountable for the funds it receives from the
Department of Education under Title I, Part A of the Act and its
performance through an agreement with the Department of Education
developed in consultation with Indian tribes.
Sec. 30.150 Information collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part involves
collections of information subject to the PRA in Sec. Sec.
30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These
collections have been approved by OMB under control number [to be
determined].
2. New part 37 is added to read as follows:
PART 37--GEOGRAPHIC BOUNDARIES
Sec.
37.100 What is the purpose of this part?
37.101 What do the terms used in this part mean?
37.102 How is this part organized?
37.103 Information collection.
Subpart A--All Schools
37.110 Who determines geographic attendance areas?
37.111 What role does a tribe have in issues relating to school
boundaries?
37.112 Must each school have a geographic attendance boundary?
Subpart B--Day Schools, On-Reservation Boarding Schools, and Peripheral
Dorms
37.120 How does this part affect current geographic attendance
boundaries?
37.121 Who establishes geographic attendance boundaries under this
part?
37.122 Once geographic attendance boundaries are established, how
can they be changed?
37.123 How does a tribe develop proposed geographic attendance
boundaries or boundary changes?
37.124 How are boundaries established for a new school or dorm?
37.125 Can an eligible student living off a reservation attend a
school or dorm?
Subpart C--Off-Reservation Boarding Schools
37.130 Who establishes boundaries for Off-Reservation Boarding
Schools?
37.131 Who may attend an ORBS?
Authority: Pub. L. 107-110.
Sec. 37.100 What is the purpose of this part?
(a) This part:
(1) Establishes procedures for confirming, establishing, or
revising attendance areas for each Bureau-funded school;
(2) Encourages consultation with and coordination between and among
all agencies (school boards, tribes, and others) involved with a
student's education; and
(3) Defines how tribes may develop policies regarding setting or
revising geographic attendance boundaries, attendance, and
transportation funding for their area of jurisdiction.
(b) The goals of the procedures in this part are to:
(1) Provide stability for schools;
(2) Assist schools to project and to track current and future
student enrollment figures for planning their budget, transportation,
and facilities construction needs;
(3) Adjust for geographic changes in enrollment, changes in school
capacities, and improvement of day school opportunities; and
(4) Avoid overcrowding or stress on limited resources.
Sec. 37.101 What do the terms used in this part mean?
Geographic attendance area means a physical land area that is
served by a Bureau-funded school.
Geographic attendance boundary means a line of demarcation that
clearly delineates and describes the limits of the physical land area
that is served by a Bureau-funded school.
Secretary means the Secretary of the Interior or a designated
representative.
Sec. 37.102 How is this part organized?
This part is divided into three subparts. Subpart A applies to all
bureau-funded schools. Subpart B applies only to day schools, on-
reservation boarding schools, and peripheral dorms--in other words, to
all bureau-funded schools except off-reservation boarding schools.
Subpart C applies only to off-reservation boarding schools (ORBS).
Sec. 37.103 Information collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part involves
collections of information subject to the PRA in Sec. Sec. 37.122(b),
and 37.123(c). These collections have been approved by OMB under
control number [to be determined].
Subpart A--All Schools
Sec. 37.110 Who determines geographic attendance areas?
The Tribal governing body or the Secretary determines geographic
attendance areas.
Sec. 37.111 What role does a tribe have in issues relating to school
boundaries?
A tribal governing body may:
(a) Establish and revise geographical attendance boundaries for all
but ORB schools,
(b) Authorize a school to provide transportation for students who
are members of the tribe attending schools outside the geographic
attendance area in which they live.
Sec. 37.112 Must each school have a geographic attendance boundary?
Yes. The Secretary must ensure that each school has a geographic
area boundary.
[[Page 8774]]
Subpart B--Day Schools, On-Reservation Boarding Schools, and
Peripheral Dorms
Sec. 37.120 How does this part affect current geographic attendance
boundaries?
The currently established geographic attendance boundaries of day
schools, on-reservation boarding schools, and peripheral dorms remain
in place unless the tribal governing body revises them.
Sec. 37.121 Who establishes geographic attendance boundaries under
this part?
(a) If there is only one day school, on-reservation boarding
school, or peripheral dorm within a reservation's boundaries, the
Secretary will establish the reservation boundary as the geographic
attendance boundary;
(b) When there is more than one day school, on-reservation boarding
school, or peripheral dorm within a reservation boundary, the Tribe may
choose to establish boundaries for each;
(c) If a Tribe does not establish boundaries under paragraph (b) of
this section, the Secretary will do so.
Sec. 37.122 Once geographic attendance boundaries are established,
how can they be changed?
(a) The Secretary can change the geographic attendance boundaries
of a day school, on-reservation boarding school, or peripheral dorm
only after:
(1) Notifying the Tribe at least 6 months in advance; and
(2) Giving the Tribe an opportunity to suggest different
geographical attendance boundaries.
(b) A tribe may ask the Secretary to change geographical attendance
boundaries by writing a letter to the Director of the Office of Indian
Education Programs, explaining the tribe's suggested changes. The
Secretary must consult with the affected tribes before deciding whether
to accept or reject a suggested geographic attendance boundary change.
(1) If the Secretary accepts the Tribe's suggested change, the
Secretary must publish the change in the Federal Register.
(2) If the Secretary rejects the Tribe's suggestion, the Secretary
will explain in writing to the Tribe why the suggestion either:
(i) Does not meet the needs of Indian students to be served; or
(ii) Does not provide adequate stability to all affected programs.
Sec. 37.123 How does a tribe develop proposed geographic attendance
boundaries or boundary changes?
(a) The Tribal governing body establishes a process for developing
proposed boundaries or boundary changes. This process may include
consultation and coordination with all entities involved in student
education.
(b) The Tribal governing body may delegate the development of
proposed boundaries to the relevant school boards. The boundaries set
by the school boards must be approved by the Tribal governing body.
(c) The Tribal governing body must send the proposed boundaries and
a copy of its approval to the Secretary.
Sec. 37.124 How are boundaries established for a new school or dorm?
Geographic attendance boundaries for a new day school, on-
reservation boarding school, or peripheral dorm must be established by
either:
(a) The tribe; or
(b) If the tribe chooses not to establish boundaries, the
Secretary.
Sec. 37.125 Can an eligible student living off a reservation attend a
school or dorm?
Yes. An eligible student living off a reservation can attend a day
school, on-reservation boarding school, or peripheral dorm.
Subpart C--Off-Reservation Boarding Schools
Sec. 37.130 Who establishes boundaries for Off-Reservation Boarding
Schools?
The Secretary or the Secretary's designee, in consultation with the
affected Tribes, establishes the boundaries for off-reservation
boarding schools (ORBS).
Sec. 37.131 Who may attend an ORBS?
Any student is eligible to attend an ORBS.
3. Part 39 is revised to read as follows:
PART 39--THE INDIAN SCHOOL EQUALIZATION PROGRAM
Subpart A--General
Sec.
39.1 What is the purpose of this part?
39.2 What are the definitions of terms used in this part?
39.3 Information collection.
Subpart B--Indian School Equalization Formula
39.100 What is the Indian School Equalization Formula?
39.101 Does ISEF assess the actual cost of school operations?
Base and Supplemental Funding
39.102 What is included in base funding?
39.103 What are the factors used to determine base funding?
39.104 How must a school's base funding provide for students with
special needs?
39.105 Are additional funds available for special education?
39.106 Who is eligible for special education funding?
39.107 Are schools allotted supplemental funds for special costs?
Gifted and Talented Programs
39.110 Can ISEF funds be distributed for the use of gifted and
talented students?
39.111 What does the term gifted and talented mean?
39.112 What is the limit on the number of students who are gifted
and talented?
39.113 What are the special accountability requirements for the
gifted and talented program?
39.114 How does a school receive funding for gifted and talented
students?
39.115 How are eligible students identified and nominated?
39.116 How does a school determine who receives gifted and talented
services?
39.117 How does a school provide gifted and talented services for a
student?
39.118 How does a student receive talented and gifted services in
subsequent years?
39.119 When must a student leave a gifted and talented program?
39.120 How are gifted and talented services provided?
39.121 What is the WSU for gifted and talented students?
Language Development Programs
39.130 Can ISEF funds be used for Language Development Programs?
39.131 What is a Language Development Program?
39.132 Can a school integrate Language Development Programs into its
regular instructional program?
39.133 Who decides how Language Development funds can be used?
39.134 How does a school identify a Limited English Proficient
student?
39.135 What services must be provided to an LEP student?
39.136 What is the WSU for Language Development programs?
39.137 May schools operate a language development program without a
specific appropriation from Congress?
Small School Adjustment
39.140 How does a school qualify for a Small School Adjustment?
39.141 What is the amount of the Small School Adjustment?
39.143 What is a small high school?
39.144 What is the small high school adjustment?
39.155 Can a school receive both a small school adjustment and a
small high school adjustment?
39.156 Is there an adjustment for small residential programs?
Geographic Isolation Adjustment
39.160 Does ISEF provide supplemental funding for extraordinary
costs related to a school's geographic isolation?
Subpart C--Administrative Procedures, Student Counts and Verifications
39.200 What is the purpose of the Indian School Equalization
Formula?
39.201 Does ISEF reflect the actual cost of school operations?
39.202 What are the definitions of terms used in this subpart?
[[Page 8775]]
39.203 How does OIEP calculate ADM?
39.204 How does OIEP calculate ISEF?
39.205 How does OIEP calculate the value of one WSU?
39.206 How does OIEP determine a school's funding for the upcoming
school year?
39.207 How are ISEP funds distributed?
39.208 When may a school count a student for membership purposes?
39.209 When must a school drop a student from its membership?
39.210 What other categories of students can a school count for
membership purposes?
39.211 Can a student be counted as enrolled in more than one school?
39.212 Will the Bureau fund children being home schooled?
39.213 What are the minimum number of instructional hours required
in order to be considered a full-time educational program?
39.214 Can a school receive funding for any part-time students?
Residential Programs
39.215 How does ISEF fund residential programs?
39.216 How are students counted for the purpose of funding
residential services?
39.217 Are there different formulas for different levels of
residential services?
39.218 What happens if a residential program does not maintain
residency levels required by this part?
39.219 What reports must residential programs submit to comply with
this rule?
Phase-In Period
39.220 How will the provisions of this subpart be phased in?
Subpart D--Accountability
39.400 What is the purpose of this subpart?
39.401 What definitions apply to terms used in this subpart?
39.402 What are the accountability measures under ISEP?
39.403 What certification is required?
39.404 What is the certification and verification process?
39.405 How will verifications be conducted?
39.406 What documentation must the school maintain for additional
services it provides?
39.407 How long must a school maintain records?
39.408 What are the responsibilities of administrative officials?
39.409 How does the OIEP Director ensure accountability?
39.410 What qualifications must an audit firm meet to be considered
for auditing ISEP administration?
39.411 How will the auditor report its findings?
39.412 What sanctions apply for failure to comply with this part?
39.413 Can a school appeal the verification of the count?
Subpart E--Contingency Fund
39.500 What emergency and contingency funds are available?
39.501 What is an emergency or unforeseen contingency?
39.502 How does a school apply for contingency funds?
39.503 How can a school use contingency funds?
39.504 May Contingency Funds be carried over to a subsequent fiscal
year?
39.505 What are the reporting requirements for the use of the
contingency fund?
Subpart F--School Board Training
39.600 Are Bureau-operated school board expenses funded by ISEP
limited?
39.601 Is school board training for Bureau-operated schools
considered a school board expense subject to the limitation?
39.602 Can Grant and Contract schools spend ISEP funds for school
board expenses, including training?
39.603 Is school board training required for all Bureau-funded
schools?
39.604 Is there a separate weight for school board training at
Bureau-operated schools?
Subpart G--Transportation
39.700 What is the purpose of this part?
39.701 What definitions apply to terms used in this subpart?
Eligibility for Funds
39.702 Can a school receive funds to transport residential students
using commercial transportation?
39.703 What ground transportation costs are covered for students
traveling by commercial transportation?
39.704 Are schools eligible for other funds to transport residential
students?
39.705 Are schools eligible for other funds to transport special
education students?
39.706 Are peripheral dormitories eligible for day transportation
funds?
39.707 Which student transportation miles are not eligible for ISEP
transportation funding?
39.708 Are non-ISEP eligible children eligible for transportation
funding?
Calculating Transportation Miles
39.710 How does a school calculate annual bus transportation miles
for day students?
39.711 How does a school calculate annual bus transportation miles
for residential students?
Reporting Requirements
39.720 Why are there different reporting requirements for
transportation data?
39.721 What transportation information must off-reservation boarding
schools report?
39.722 What transportation information must day schools or on-
reservation boarding schools report?
Miscellaneous Provisions
39.730 Which standards must student transportation vehicles meet?
39.731 Can transportation time be used as instruction time for day
school students?
39.732 How does OIEP allocate transportation funds to schools?
Subpart H--Determining the Amount Necessary To Sustain an Academic or
Residential Program
39.801 What is the formula to determine the amount necessary to
sustain a school's academic or residential program?
39.802 What is the Student Unit value in the formula?
39.803 What is a Weighted Student Unit in the formula?
39.804 How is the SUIV calculated?
39.805 What was the student unit for Instruction value for the
school year 1999-2000?
39.806 How is the SURV calculated?
39.807 How will the Student Unit Value be adjusted annually?
39.808 What definitions apply?
Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110.
Sec. 39.1 What is the purpose of this part?
This part provides for the uniform direct funding of BIA-operated
and tribally operated day schools, boarding schools, and dormitories.
This part applies to all schools, dormitories, and administrative units
that are funded through the Indian School Equalization Program of the
Bureau of Indian Affairs.
Sec. 39.2 What are the definitions of terms used in this part?
Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies and members of one or
more specified Indian Tribes. The term includes Bureau Area Offices
only with respect to off-reservation boarding schools administered
directly by such Offices.
Agency school board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected tribes, except that, in
Agencies serving a single school, the school board of such school shall
fulfill these duties.
Assistant Secretary means the Assistant Secretary of Indian
Affairs, Department of the Interior, or his or her designee.
Average Daily Membership (ADM) means the aggregated ISEP-eligible
membership of a school for a school year, divided by the number of
school days in the school's submitted calendar.
Base or base unit means both the weight or ratio of 1.0 and the
dollar value annually established for that weight or ratio which
represents students in grades 4 through 8 in a typical instructional
program.
Basic program means the instructional program provided all students
at any age level exclusive of any supplemental programs which are not
provided to all students in day or boarding schools.
[[Page 8776]]
Basic transportation miles means the daily average of all bus miles
logged for round trip home-to-school transportation of day students.
Director means the Director of the Office of Indian Education
Programs in the Bureau of Indian Affairs or a designee.
Education Line Officer means the Bureau official in charge of
Bureau education programs and functions in an Agency who reports to the
Director.
Eligible Indian student means a student who:
(1) Is a member of, or is at least one-fourth degree Indian blood
descendant of a member of, a tribe that is eligible for the special
programs and services provided by the United States through the Bureau
of Indian Affairs to Indians because of their status as Indians;
(2) Resides on or near a reservation or meets the criteria for
attendance at a Bureau off-reservation home-living school; and
(3) Is enrolled in a Bureau-funded school.
Home schooled means a student who is not enrolled in a school and
is receiving educational services at home at the parent's or guardian's
initiative.
Homebound means a student who is educated outside the classroom.
Individual supplemental services means non-base academic services
provided to eligible students. Individual supplemental services that
are funded by additional WSUs are gifted and talented or language
development services.
ISEP means the Indian School Equalization Program.
ISEP student count week means the last full week in September
during which schools count their student enrollment for ISEP purposes.
Limited English Proficient (LEP) means a child from a language
background other than English who needs language assistance in their
own language or in English in the schools. This child has sufficient
difficulty speaking, writing, or understanding English to deny him/her
the opportunity to learn successfully in English-only classrooms and
meets one or more of the following conditions:
(1) The child was born outside of the United States or the child's
native language is not English;
(2) The child comes from an environment where a language other than
English is not dominant; or
(3) The child is an American Indian or Alaska native and comes from
an environment where a language other than English has had a
significant impact on the child's level of English language
proficiency.
Local School Board means a body chosen in accordance with the laws
of the tribe to be served or, in the absence of such laws, elected by
the parents of the Indian children attending the school. For a school
serving a substantial number of students from different tribes:
(1) The members of the local school board shall be appointed by the
tribal governing bodies affected; and
(2) The Secretary shall determine number of members in consultation
with the affected tribes.
OIEP means the Office of Indian Education Programs in the Bureau of
Indian Affairs.
Resident means a student who is residing at a boarding school or
dormitory during the weeks when student membership counts are conducted
and is either:
(1) A member of the instructional program in the same boarding
school in which the student is counted as a resident; or
(2) Enrolled in and a current member of a public school in the
community in which the student resides.
Residential program means a program that provides room and board in
a boarding school or dormitory to residents who are either:
(1) Enrolled in and are current members of a public school in the
community in which they reside; or
(2) Members of the instructional program in the same boarding
school in which they are counted as residents and:
(i) Are officially enrolled in the residential program of a Bureau-
operated or -funded school; and
(ii) Are actually receiving supplemental services provided to all
students who are provided room and board in a boarding school or a
dormitory.
School means a school funded by the Bureau of Indian Affairs. The
term ``school'' does not include public, charter, or private schools.
School day means a day as defined by the submitted school calendar,
as long as annual instructional hours are as they are reflected in
Sec. 39.213, excluding passing time, lunch, recess, and breaks.
School bus means a passenger vehicle, operated by an operator in
the employ of, or under contract to, a Bureau operated or funded
school, who is qualified to operate such a vehicle under State or
Federal regulations governing the transportation of students; which
vehicle is used to transport day students to and/or from home and the
school.
School-wide supplemental funds means non-base academic funding for
schools with unique characteristics. The school-wide supplemental funds
are funded by additional WSUs and are as follows:
(1) Geographic isolation;
(2) Small school adjustment;
(3) Small high school adjustment;
(5) School board training for Bureau-operated schools.
Special education means specially designed instruction or speech-
language therapy to meet the unique needs of a child with a disability.
Therapies covered by this definition include:
(1) Instruction in the home, classroom, institution, hospital, and
other settings;
(2) Instruction in physical education and speech therapy;
(3) Transition services;
(4) Travel training;
(5) Assistive technology services; and
(6) Vocational education.
Supervisor means the individual in the position of ultimate
authority at a Bureau-funded school.
Tribally operated contract school means an elementary school,
secondary school, or dormitory that receives financial assistant for
its operation under a contract, grant, or agreement with the Bureau
under section 102, 103(a), or 208 of the Indian Self-Determination and
Education Assistance Act, or under the Tribally Controlled Schools Act
of 1988.
Three-year average means:
(1) For academic programs, the average daily membership of the 3
years before the year of operation; and
(2) For the residential programs, the count period membership of
the 3 years before the year of operations.
Transported student means the average number of students
transported to school on a daily basis.
Unimproved roads means unengineered earth roads that do not have
adequate gravel or other aggregate surface materials applied and do not
have drainage ditches or shoulders.
Weighted Student Unit means:
(1) The measure of student membership adjusted by the weights or
ratios used as factors in the Indian School Equalization Formula; and
(2) The factor used to adjust the weighted student count at any
school as the result of other adjustments made under this part.
Sec. 39.3 Information collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information, subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
[[Page 8777]]
et seq.) (PRA), unless that collection of information displays a
currently valid Office of Management and Budget (OMB) Control Number.
This part involves collections of information subject to the PRA. These
collections have been approved by OMB under control number [to be
determined].
Subpart B--Indian School Equalization Formula
Sec. 39.100 What is the Indian School Equalization Formula?
The Indian School Equalization Formula (ISEF) was established to
allocate Indian School Equalization Program (ISEP) funds. OIEP applies
ISEF to determine funding allocation for Bureau-funded schools as
described in Sec. Sec. 39.204 through 39.206.
Sec. 39.101 Does ISEF assess the actual cost of school operations?
No. ISEF does not attempt to assess the actual cost of school
operations either at the local level or in the aggregate at the
national level. ISEF provides a method of distribution of funds
appropriated by Congress for all schools.
Base and Supplemental Funding
Sec. 39.102 What is included in base funding?
(a) Academic base funding includes all available funding for
educational services to students enrolled in a Bureau-funded school.
(b) Residential base funding includes all available funding for
residential services to students enrolled in a Bureau-funded school or
an eligible public school who live in a Bureau-funded residential
setting.
Sec. 39.103 What are the factors used to determine base funding?
To determine base funding, schools use must the factors shown in
the following table. The school must apply the appropriate factor
(called the base academic weight) to each student for funding purposes.
------------------------------------------------------------------------
Base funding
Base funding factor for
Grade level factor for residential
day student student
------------------------------------------------------------------------
Kindergarten................................ 1.15 NA
Grades 1-3.................................. 1.38 1.75
Grades 4-6.................................. 1.15 1.6
Grades 7-8.................................. 1.38 1.6
Grades 9-12................................. 1.5 1.6
------------------------------------------------------------------------
Sec. 39.104 How must a school's base funding provide for students
with special needs?
(a) Each school must provide for students with special needs by:
(1) Reserving 15 percent of academic base funding to support
special education programs; and
(2) Providing resources through residential base funding to meet
the special needs of students under the National Criteria for Home-
Living Situations.
(b) A school may spend ISEP funds on school-wide programs to
benefit all students (including those without disabilities) only if all
of the following conditions are met:
(1) The school sets aside 15 percent of the basic instructional
allotment to meet the needs of students with disabilities;
(2) The school can document that it has met all needs of students
with disabilities and addressed all components of the Individuals with
Disabilities Education Act (IDEA); and
(3) There are unspent funds after the conditions in paragraphs
(b)(1) and (b)(2) of this section are met.
Sec. 39.105 Are additional funds available for special education?
(a) Schools may supplement base funding for special education with
funds available under Part B of the Individuals with Disabilities
Education Act (IDEA). To obtain Part B funds, the school must submit an
application to OIEP. IDEA funds are available only if the school
demonstrates that funds reserved under Sec. 39.103(a) are inadequate
to pay for services needed by all eligible ISEP students with
disabilities.
(b) The Bureau will facilitate the delivery of IDEA Part B funding
by:
(1) Providing technical assistance to schools in completing the
application for the funds; and
(2) Providing training to Bureau to improve the delivery of Part B
funds.
Sec. 39.106 Who is eligible for special education funding?
To receive ISEP special education funding, a student must be under
22 years old and must not have received a high school diploma or its
equivalent on the first day of eligible attendance. The following
minimum age requirements also apply:
(a) To be counted as a kindergarten student, a child must be at
least 5 years old by December 31; and
(b) To be counted as a first grade student; a child must be at
least 6 years old by December 31.
Sec. 39.107 Are schools allotted supplemental funds for special
costs?
Yes, schools are allotted supplemental funds for special costs.
ISEF provides additional funds to schools through add-on weights
(called special cost factors) that add value to the base weighted
student unit. ISEF adds special cost factors as shown in the following
table.
----------------------------------------------------------------------------------------------------------------
Cost factor Weight For more information see
----------------------------------------------------------------------------------------------------------------
Gifted and talented students.............. 2.0 Sec. Sec. 39.110 through 39.121.
Students with language development needs.. 0.13 Sec. Sec. 39.130 through 39.137.
Small school size......................... (\1\) Sec. Sec. 39.140 through 39.156.
Geographic isolation of the school........ 12.5 Sec. 39.160.
----------------------------------------------------------------------------------------------------------------
\1\ Varies.
Gifted and Talented Programs
Sec. 39.110 Can ISEF funds be distributed for the use of gifted and
talented students?
Yes, ISEF funds can be distributed for the provision of services
for gifted and talented students.
Sec. 39.111 What does the term gifted and talented mean?
The term gifted and talented means students, children, or youth
who:
(a) Give evidence of high achievement capability in areas such as
intellectual, creative, artistic, or leadership capacity, or in
specific academic fields; and
(b) Need services or activities not ordinarily provided by the
school in order to fully develop those capabilities.
Sec. 39.112 What is the limit on the number of students who are
gifted and talented?
There is no limit on the number of students that a school can
classify as gifted and talented.
Sec. 39.113 What are the special accountability requirements for the
gifted and talented program?
If a school identifies more than 13 percent of its student
population as
[[Page 8778]]
gifted and talented the Bureau will immediately audit the school's
gifted and talented program to ensure that all identified students:
(a) Meet the gifted and talented requirement in the regulations;
and
(b) Are receiving gifted and talented services.
Sec. 39.114 How does a school receive funding for gifted and talented
students?
To be funded as gifted and talented under this part, a student must
be identified as talented and gifted in at least one of the following
areas.
(a) Intellectual Ability means scoring in the top 5 percent on a
statistically valid and reliable measurement tool of intellectual
ability.
(b) Creativity/Divergent Thinking means scoring in the top 5
percent of performance on a statistically valid and reliable
measurement tool of creativity/divergent thinking.
(c) Academic Aptitude/Achievement means scoring in the top 15
percent of academic performance in a total subject area score on a
statistically valid and reliable measurement tool of academic
achievement/aptitude, or a standardized assessment, such as an NRT or
CRT.
(d) Leadership means the student is recognized as possessing the
ability to lead, guide, or influence the actions of others as measured
by objective standards that a reasonable person of the community would
believe demonstrates that the student possess leadership skills. These
standards include evidence from surveys, supportive documentation
portfolios, elected or appointed positions in school, community, clubs
and organization, awards documenting leadership capabilities. No school
can identify more than 15 percent of its student population as gifted
and talented through the leadership category.
(e) Visual and Performing Arts means outstanding ability to excel
in any imaginative art form; including, but not limited to, drawing,
printing, sculpture, jewelry making, music, dance, speech, debate, or
drama determined by as documented from surveys, supportive
documentation portfolios, awards from judged or juried competitions. No
school can identify more than 15 percent of its student population as
gifted and talented through the visual and performing arts category.
Sec. 39.115 How are eligible students identified and nominated?
(a) Screening can be completed annually to identify potentially
eligible students. Students meeting the criteria in Sec. 39.114 for
gifted and talented services can be nominated by any of the following:
(1) A teacher or other school staff;
(2) Another student;
(3) A community member;
(4) A parent or legal guardian; or
(5) A student can nominate himself or herself.
(b) Students can be nominated based on information regarding the
student's abilities from any of the following sources:
(1) Collections of work;
(2) Audio/visual tapes;
(3) School grades;
(4) Judgment of work by qualified individuals knowledgeable about
the child's performances (e.g., artists, musicians, poets, historians,
etc.);
(5) Interviews, or observations; or
(6) Information from other sources.
(c) The school must have written parental consent to collect
documentation of gifts and talents under paragraph (b) of this section.
Sec. 39.116 How does a school determine who receives gifted and
talented services?
(a) To determine who receives gifted and talented funding, the
school must use qualified professionals to perform a multi-disciplinary
assessment. The assessment may include the examination of work samples
or performance appropriate to the area under consideration. The school
must have the parent or guardian's written permission to conduct
individual assessments or evaluations. Assessments under this section
must meet the following standards:
(1) The assessment must use assessment instruments specified in
Sec. 39.114 for each of the five criteria for which the student is
nominated;
(2) If the assessment uses a multi-criteria evaluation, that
evaluation must be an unbiased evaluation based on student needs and
abilities;
(3) Indicators for visual and performing arts and leadership may be
determined based on national, regional, or local criteria; and
(4) The assessment may use student portfolios.
(b) A multi-disciplinary team will review the assessment results to
determine eligibility for gifted and talented services. The purpose of
the team is to determine eligibility and placement to receive gifted
and talented services.
(1) Team members may include nominator, classroom teacher,
qualified professional who conducted the assessment, local experts as
needed, and other appropriate personnel such as the principal and or a
counselor.
(2) A minimum of three team members is required to determine
eligibility.
(3) The team will design a specific education plan to provide
gifted and talented services related in the areas identified.
Sec. 39.117 How does a school provide gifted and talented services
for a student?
Gifted and talented services are provided through or under the
supervision of highly qualified professional teachers. To provide
gifted and talented services for a student, a school must take the
steps in this section.
(a) The multi-disciplinary team formed under Sec. 39.116 (b) will
sign a statement of agreement for placement of services based on
documentation reviewed.
(b) The student's parent or guardian must give written permission
for the student to participate.
(c) The school must develop a specific education plan that
contains:
(1) The date of placement;
(2) The date services will begin;
(3) The criterion from Sec. 39.114 for which the student is
receiving services and the student's performance level;
(4) Measurable goals and objectives; and
(5) A list of staff responsible for each service that the school is
providing.
Sec. 39.118 How does a student receive gifted and talented services
in subsequent years?
For each student receiving gifted and talented services, the school
must conduct a yearly evaluation of progress, file timely progress
reports, and update the specific education plan.
(a) If a school identifies a student as gifted and talented based
on Sec. 39.114 (a), (b), or (c), then the student does not need to
reapply for the gifted and talented program. However, the student must
be retested at in the least every 3 years through the 10th grade to
verify eligibility.
(b) If a school identifies a student as gifted and talented based
on Sec. 39.114 (e) or (f), the student must be reevaluated annually
for the gifted and talented program.
Sec. 39.119 When must a student leave a gifted and talented program?
A student must leave the gifted and talented program when either:
(a) The student has received all of the available services that can
meet the student's needs;
(b) The student no longer meets the criteria that have qualified
him or her for the program; or
(c) The parent or guardian removes the student from the program.
[[Page 8779]]
Sec. 39.120 How are gifted and talented services provided?
In providing services under this section, the school must:
(a) Provide a variety of programming services to meet the needs of
the students;
(b) Provide the type and duration of services identified in the
Individual Education Plan established for each student; and
(c) Maintain individual student files to provide documentation of
process and services; and
(d) Maintain confidentiality of student records under the Family
Educational Rights and Privacy Act (FERPA).
Sec. 39.121 What is the WSU for gifted and talented students?
The WSU for a gifted and talented student is the base academic
weight (see Sec. 39.103) subtracted from 2.0. The following table
shows the gifted and talented weights obtained using this procedure.
------------------------------------------------------------------------
Gifted and
Grade level talented
WSU
------------------------------------------------------------------------
Kindergarten............................................... 0.85
Grades 1 to 3.............................................. 0.62
Grades 4 to 6.............................................. 0.85
Grades 7 to 8.............................................. 0.62
Grades 9 to 12............................................. 0.50
------------------------------------------------------------------------
Language Development Programs
Sec. 39.130 Can ISEF funds be used for Language Development Programs?
Yes, schools can use ISEF funds to implement Language Development
programs that demonstrate the positive effects of native language
programs on students' academic success and English proficiency. Funds
can be distributed to a total aggregate instructional weight of 0.13
for each eligible student.
Sec. 39.131 What is a Language Development Program?
A Language Development program is one that serves students who
either:
(a) Are not proficient in spoken or written English;
(b) Are not proficient in any language;
(c) Are learning their native language for the purpose of
maintenance or language restoration and enhancement;
(d) Are being instructed in their native language; or
(e) Are learning non-language subjects in their native language.
Sec. 39.132 Can a school integrate Language Development Programs into
its regular instructional program?
A school may offer Language Development programs to students as
part of its regular academic program. Language Development does not
have to be offered as a stand-alone program.
Sec. 39.133 Who decides how Language Development funds can be used?
Tribal governing bodies or local school boards decide how their
funds for Language Development programs will be used in the
instructional program to meet the needs of their students.
Sec. 39.134 How does a school identify a Limited English Proficient
student?
A student is identified as Limited English Proficient (LEP) by
using a nationally recognized scientifically research-based test.
Sec. 39.135 What services must be provided to an LEP student?
A school must provide services that assist each LEP student to:
(a) Become proficient in English, and to the extent possible
proficient in their native language; and
(b) Meet the same challenging academic content and student academic
achievement standards that all students are expected to meet under
section 1111(b)(1) of the Act.
Sec. 39.136 What is the WSU for Language Development programs?
Language Development programs are funded at 0.13 WSUs per student.
Sec. 39.137 May schools operate a language development program
without a specific appropriation from Congress?
Yes, a school may operate a language development program without a
specific appropriation from Congress, but any funds used for such a
program must come from existing ISEP funds. When Congress specifically
appropriates funds for the Indian or native languages, the factor to
support the language development program will be no more than 0.25 WSU.
[25 U.S.C. 2007 (c)(i)(e)].
Small School Adjustment
Sec. 39.140 How does a school qualify for a Small School Adjustment?
A school will receive a small school adjustment if either:
(a) Its average daily membership (ADM) is less than 100 students;
or
(b) It serves lower grades and has a diploma-awarding high school
component with an average instructional daily membership of less than
100 students.
Sec. 39.141 What is the amount of the Small School Adjustment?
(a) A school with a 3-year ADM of 50 or fewer students will receive
an adjustment equivalent to an additional 12.5 base WSU; or
(b) A school with a 3-year ADM of 51 to 99 students will use the
following formula to determine the number of WSU for its adjustment.
With X being the ADM, the formula is as follows:
WSU adjustment = ((100-X)/200)*X
Sec. 39.143 What is a small high school?
For purposes of this part, a small high school:
(a) Is accredited under 25 U.S.C. 2001(b);
(b) Is staffed with highly qualified teachers;
(c) Operates any combination of grades 9 through 12;
(d) Offers high school diplomas; and
(e) Has an ADM of fewer than100 students.
Sec. 39.144 What is the small high school adjustment?
(a) The small high school adjustment is a WSU adjustment given to a
small high school that meets both of the following criteria:
(1) It has a 3-year average daily membership (ADM) of less than 100
students; and
(2) It operates as part of a school that during the 2003-04 school
year also included lower grades.
(b) The following table shows the WSU adjustment given to small
high schools. In the table, ``X'' stands for the ADM.
------------------------------------------------------------------------
School receives a small school ADM of high Amount of small high
adjustment under Sec. 39.141 school component school adjustment
------------------------------------------------------------------------
Yes........................... 50 or fewer 6.25 base WSU
students.
Yes........................... 51 to 99......... Determined using the
following formula:
WSU = ((100-X)/
200)*X/2
No............................ 50 or fewer 12.5 base WSU
students.
No............................ 51 to 99 students Determined using the
following formula:
((100-X)/200)*X
------------------------------------------------------------------------
[[Page 8780]]
Sec. 39.155 Can a school receive both a small school adjustment and a
small high school adjustment?
A school that meets the criteria in Sec. 39.140 can receive both a
small school adjustment and a small high school adjustment. The
following table shows the total amount of adjustments for eligible
schools by average daily membership (ADM) category.
----------------------------------------------------------------------------------------------------------------
ADM--high school Small school Small high school
ADM--entire school component adjustment adjustment Total adjustment
----------------------------------------------------------------------------------------------------------------
0-50 NA 12.5 NA 12.5
0-50 0-50 12.5 6.25 18.75
51-99 0-50 *12.5-0.5 6.25 18.75-6.75
51-99 51-99 *12.5-0.5 **6.25-0.25 18.75-0.7
99 0-50 0 12.5 12.5
99 51-98 0 **12.5-0.5 12.5-0.5
----------------------------------------------------------------------------------------------------------------
* The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
the formula in Sec. 39.141.
** The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
the formula in Sec. 39.144.
Sec. 39.156 Is there an adjustment for small residential programs?
In order to compensate for the additional costs of operating a
small residential program, OIEP will add to the total WSUs of each
qualifying school as shown in the following table:
------------------------------------------------------------------------
Type of residential program Number of WSUs added
------------------------------------------------------------------------
Residential student count of 50 or fewer 12.5
ISEP-eligible students.
Residential student count of between 51 Determined by the formula
and 99 ISEP-eligible students. ((100-X)/200))X, where X
equals the residential
student count.
------------------------------------------------------------------------
Geographic Isolation Adjustment
Sec. 39.160 Does ISEF provide supplemental funding for extraordinary
costs related to a school's geographic isolation?
Yes. Havasupai Elementary School, for as long as it remains in its
present location, will be awarded an additional cost factor of 12.5
WSU.
Subpart C--Administrative Procedures, Student Counts, and
Verifications
Sec. 39.200 What is the purpose of the Indian School Equalization
Formula?
OIEP uses the Indian School Equalization Formula (ISEF) to
distribute Indian School Equalization Program (ISEP) appropriations
equitably to Bureau-funded schools.
Sec. 39.201 Does ISEF reflect the actual cost of school operations?
ISEF does not attempt to assess the actual cost of school
operations either at the local school level or in the aggregate
nationally. ISEF is a relative distribution of available funds at the
local school level by comparison with all other Bureau-funded schools.
Sec. 39.202 What are the definitions of terms used in this subpart?
Homebound means a student who is educated outside the classroom.
Home schooled means a student who is not enrolled in a school and
is receiving educational services at home at the parent's or guardian's
initiative.
School day means a day as defined by the submitted school calendar,
as long as annual instructional hours are as they are reflected in
Sec. 39.213, excluding passing time, lunch, recess, and breaks.
Three-year average means:
(1) For academic programs, the average daily membership of the 3
years before the year of operation; and
(2) For the residential programs, the count period membership of
the 3 years before the year of operations.
Sec. 39.203 How does OIEP calculate ADM?
OIEP calculates ADM by:
(a) Adding the total enrollment figures from periodic reports
received from each Bureau-funded school; and
(b) Dividing the total enrollment for each school by the number of
days in the school's reporting period.
Sec. 39.204 How does OIEP calculate ISEF?
To calculate ISEF for a school, OIEP will add the weights from
paragraphs (a), (b), and (c) of this section to come up with a total of
weighted student units (WSUs).
(a) The 3-year average of ADM multiplied by the weighted student
unit that is applicable to eligible students;
(b) Any supplemental units generated by the students; and
(c) Any supplemental weights generated by the schools.
Sec. 39.205 How does OIEP calculate the value of one WSU?
To calculate the appropriated dollar value of one WSU, OIEP divides
the systemwide average number of WSUs for the previous 3 years into the
current year's appropriation.
Sec. 39.206 How does OIEP determine a school's funding for the
upcoming school year?
To determine a school's funding for the upcoming school year, OIEP
uses the following six-step process:
(a) Step one. Multiply the appropriate base academic weight from
Sec. 39.121 by the number of students in each grade level category.
(b) Step two. Multiply the number of students eligible for
supplemental program funding under Sec. 39.107 by the WSU for the
program.
(c) Step three. Calculate all school enrollment weights and
residential weights to which the school is entitled.
(d) Step four. Add together the sums obtained in steps one through
three to obtain each school's total WSU
(e) Step five. Add together the total WSUs for all Bureau-funded
schools.
(f) Step six. Calculate the value of a WSU by dividing this year's
funds by the average total WSUs (calculated under step five) for the
previous 3 years.
(g) Step seven. Multiply each school's WSU total by the base value
of one WSU to determine funding for that school.
Sec. 39.207 How are ISEP funds distributed?
(a) On July 1, schools will receive funding based on 80 percent of
the WSU value as determined by dividing available funds by the total
average WSU for the previous three years.
(b) On December 1, the balance will be distributed to all schools
after verification of the school count and any adjustments made through
the appeals process for the third year.
Sec. 39.208 When may a school count a student for membership
purposes?
If a student is enrolled, is in attendance during any of the first
10 days of school, and receives at least 5 days' instruction, the
student is deemed to be enrolled all 10 days. The first 10 days of
school, for purposes of this section, are determined by the calendar
that the school submits to OIEP.
[[Page 8781]]
(a) For ISEP purposes, a school can add a student to the membership
when he or she has been enrolled and has received a full day of
instruction from the school.
(b) Except as provided in Sec. 39.210, to be counted for ADM, a
student dropped under Sec. 39.209 must:
(1) Be re-enrolled; and
(2) Receive a full day of instruction from the school.
Sec. 39.209 When must a school drop a student from its membership?
If a student is absent for 10 consecutive school days, the school
must drop that student from the membership for ISEP purposes of that
school on the 11th day.
Sec. 39.210 What other categories of students can a school count for
membership purposes?
A school can count other categories of students for membership
purposes as shown in the following table.
------------------------------------------------------------------------
Circumstances under which student
Type of student can be included in the school's
membership
------------------------------------------------------------------------
(a) Homebound..................... (1) The student is temporarily
confined to the home for some or
all of the school day for medical,
family emergency, or other reasons
required by law or regulation;
(2) The student is being provided by
the school with at least 5
documented contact hours each week
of academic services by certified
educational personnel; and
(3) Appropriate documentation is on
file at the school.
(b) Located in an institutional The school is either:
setting outside of the school. (1) Paying for the student to
receive educational services from
the facility; or
(2) Providing educational services
by certified school staff for at
least 5 documented contact hours
each week.
(c) Taking college courses during (1) The student is concurrently
the school day. enrolled in, and receiving credits
for both the school's courses and
college courses; and
(2) The student is in physical
attendance at the school at least 3
documented contact hours per day.
(d) Taking distance learning The student is both:
courses. (1) Receiving high school credit for
grades; and
(2) In physical attendance at the
school at least 3 documented
contact hours per day.
(e) Taking internet courses....... The student is both:
(1) Receiving high school credit for
grades; and
(2) Is taking the courses at the
school site under a teacher's
supervision.
------------------------------------------------------------------------
Sec. 39.211 Can a student be counted as enrolled in more than one
school?
Yes, if a student attends more than one school during an academic
year, each school may count the student as enrolled once the student
meets the criteria in Sec. 39.208.
Sec. 39.212 Will the Bureau fund children being home schooled?
No, the Bureau will not fund any child that is being home schooled.
Sec. 39.213 What are the minimum number of instructional hours
required in order to be considered a full-time educational program?
A full time program provides the following number of instructional/
student hours to the corresponding grade level:
------------------------------------------------------------------------
Grade Hours
------------------------------------------------------------------------
K.............................................................. 720
1-3............................................................ 810
4-8............................................................ 900
9-12........................................................... 970
------------------------------------------------------------------------
Sec. 39.214 Can a school receive funding for any part-time students?
(a) A school can receive funding for the following part-time
students:
(1) Kindergarten students enrolled in a 2-hour program; and
(2) Grade 7-12 students enrolled in at least half but less than a
full instructional day.
(b) The school must count students classified as part-time at 50
percent of their basic instructional WSU value.
Residential Programs
Sec. 39.215 How does ISEF fund residential programs?
Residential programs are funded on a WSU basis using a formula that
takes into account the number of nights of service per week. Funding
for residential programs is based on the average of the 3 previous
years' WSUs.
Sec. 39.216 How are students counted for the purpose of funding
residential services?
For a student to be considered in residence for purposes of this
subpart, the school must be able to document that the student:
(a) Was in residence at least one night during the first full week
of October;
(b) Was in residence at least one night during the week preceding
the first week in October;
(c) Was in residence at least one night during the week following
the first week in October; and
(d) Was present for both the after school count and the midnight
count at least one night during each week specified in this section.
Sec. 39.217 Are there different formulas for different levels of
residential services?
(a) Residential services are funded as shown in the following
table:
------------------------------------------------------------------------
If a residential program operates * * Each student is funded at the
* level of * * *
------------------------------------------------------------------------
(1) 4 nights per week or less........ Total WSU x 4/7
(2) 5, 6 or 7 nights per week........ Total WSU x 7/7
------------------------------------------------------------------------
(b) In order to qualify for residential services funding under
paragraph (a)(2) of this section, a school must document that at least
10 percent of residents are present on 3 of the 4 weekends during the
count period.
(c) At least 50 percent of the residency levels established during
the count period must be maintained every month for the remainder of
the school year.
(d) A school may obtain waivers from the requirements of this
section if there are health or safety justifications.
Sec. 39.218 What happens if a residential program does not maintain
residency levels required by this part?
Each school must maintain its declared nights of service per week
as certified in its submitted school calendar. For each month that a
school does not maintain 25 percent of the residency shown in its
submitted calendar, the school will lose one-tenth of its current year
allocation.
Sec. 39.219 What reports must residential programs submit to comply
with this rule?
Residential programs must report their monthly counts to the
Director on the last school day of the month. To be
[[Page 8782]]
counted, a student must have been in residence at least 10 nights
during each full school month.
Phase-In Period
Sec. 39.220 How will the provisions of this subpart be phased in?
In calculating ADM for purposes of this subpart, a school must
phase in the provisions of this subpart as shown in the following
table.
------------------------------------------------------------------------
Time period How OIEP must calculate ADM
------------------------------------------------------------------------
(a) First year after the effective Use the prior 3 years' count period
date of this part. to create an average membership for
funding purposes.
(b) Second year after the (1) The academic program will use
effective date of this part. the previous year's ADM and the 2
prior years' count periods;
(2) The residential program will use
the previous year's count period
and the 2 prior years' count weeks.
(c) Each succeeding year after the Add one year of ADM or count period
effective date of this part. and drop one year of prior count
weeks until both systems or
operating on a 3-year rolling
average using the previous 3 years'
count period or ADM, respectively.
------------------------------------------------------------------------
Subpart D--Accountability
Sec. 39.400 What is the purpose of this subpart?
The purpose of this subpart is to ensure that this subpart
establishes systematic verification and random independent outside
auditing procedures to hold administrative the school, school board, or
tribal officials having responsibility for student count and student
transportation expenditure reporting are held accountable for the
accurate and reliable performance of these duties. The subpart
establishes systematic verification and random independent outside
auditing procedures to accomplish this goal.
Sec. 39.401 What definitions apply to terms used in this subpart?
Administrative officials means any persons responsible for managing
and operating a school, including the school supervisor, the chief
school administrator, tribal officials, Education Line Officers, and
the Director, OIEP.
Director means the Director of the Office of Indian Education
Programs of the Bureau of Indian Affairs.
Education Line Officer means the Bureau official in charge of
Bureau education programs and functions in an Agency who reports to the
Director.
Sec. 39.402 What are the accountability measures under ISEP?
There are strict accountability measures under ISEP for misapplying
or evading the processes in this part for classifying, counting, and
serving students and for accurately reporting student transportation
expenditures. These measure will ensure the equitable distribution of
funds among schools. The accountability measures in the subpart apply
to officials who are responsible under this part for:
(a) Classifying and counting students for funding under ISEF;
(b) Overseeing, certifying, and verifying the student count
process; and
(c) Overseeing, certifying, and verifying transportation
expenditure accounting and reporting.
Sec. 39.403 What certification is required?
(a) Each school must maintain an individual file on each student
receiving basic educational and supplemental services. The file must
contain written documentation of the following:
(1) Each student's eligibility and attendance records;
(2) A complete listing of all supplemental services provided,
including all necessary documentation required by statute and
regulations (e.g., a current and complete Individual Education Plan for
each student receiving supplemental services); and
(3) Documentation of expenditures and program delivery for student
transportation to and from school provided by commercial carriers.
(b) The School must maintain the following files in a central
location:
(1) The school's ADM and supplemental program counts and
residential count;
(2) Transportation related documentation, such as school bus
mileage, bus routes;
(3) A list of students transported to and from school;
(4) An electronic student count program or database;
(5) Class record books;
(6) Supplemental program class record books;
(7) For residential programs, residential student attendance
documentation;
(8) Evidence of teacher certification; and
(9) The school's accreditation certificate.
(c) The Director must maintain a record of required certifications
for ELOs, specialists, and school superintendents in a central
location.
Sec. 39.404 What is the certification and verification process?
(a) Each school must:
(1) Certify that the files required by Sec. 39.403 are complete
and accurate; and
(2) Compile a student roster that includes a complete list of all
students by grade, days of attendance, and supplemental services.
(b) The chief school administrator and the president of the school
board are responsible for certifying the school's ADM and residential
count is true and accurate to the best of their knowledge or belief and
is supported by appropriate documentation.
(c) OIEP's education line officer (ELO) will annually review the
following to verify that the information is true and accurate and is
supported by program documentation:
(1) The eligibility of every student;
(2) The school's ADM and supplemental program counts and
residential count;
(3) Evidence of accreditation;
(4) Documentation for all provided basic and supplemental services,
including all necessary documentation required by statute and
regulations (e.g., a current and complete Individual Education Plan for
each student receiving supplemental services); and
(5) Documentation of required by subpart G for student
transportation to and from school provided by commercial carriers.
Sec. 39.405 How will verifications be conducted?
The eligibility of every student shall be verified. The ELO will
take a random sampling of five days with a minimum of one day per
grading period to verify the information in Sec. 39.404(c) The ELO
will verify the count for the count period and verify residency during
the remainder of the year.
Sec. 39.406 What documentation must the school maintain for
additional services it provides?
Every school must maintain a file on each student receiving
additional services. (Additional services include for homebound
services, institutional
[[Page 8783]]
services, distance courses, internet courses or college services.) The
school must certify, and its records must show, that:
(a) Each homebound or institutionalized student is receiving 5
contact hours each week by certified educational personnel;
(b) Each student taking college, distance or internet courses is in
physical attendance at the school for at least 3 certified contact
hours per day.
Sec. 39.407 How long must a school maintain records?
The responsible administrative official for each school must
maintain records relating to ISEP, supplemental services, and
transportation-related expenditures. The official must maintain these
records in appropriate retrievable storage for at least the four years
prior to the current school year, unless Federal records retention
schedules require a longer period.
Sec. 39.408 What are the responsibilities of administrative
officials?
Administrative officials have the following responsibilities:
(a) Applying the appropriate standards in this part for classifying
and counting ISEP eligible Indian students at the school for formula
funding purposes;
(b) Accounting for and reporting student transportation
expenditures;
(c) Providing training and supervision to ensure that appropriate
standards are adhered to in counting students and accounting for
student transportation expenditures;
(d) Submitting all reports and data on a timely basis; and
(e) Taking appropriate disciplinary action for failure to comply
with requirements of this part.
Sec. 39.409 How does the OIEP Director ensure accountability?
(a) The Director of OIEP must ensure accountability in student
counts and student transportation by doing all of the following:
(1) Conducting annual independent and random field audits of the
processes and reports of at least one school per OIEP line office to
ascertain the accuracy of Bureau line officers' reviews;
(2) Hearing and making decisions on appeals from school officials;
(3) Reviewing reports to ensure that standards and policies are
applied consistently, education line officers treat schools fairly and
equitably, and the bureau takes appropriate administrative action for
failure to follow this part; and
(4) Reporting the results of the findings and determinations under
this section to the appropriate tribal governing body.
(b) The purpose of the audit required by paragraph (a)(1) of this
section is to ensure that the procedures outlined in these regulations
are implemented by responsible administrative officials. To conduct the
audit required by paragraph (a)(1) of this section, OIEP will select an
independent audit firm that will:
(1) Select a statistically valid audit sample of recent student
counts and student transportation reports; and
(2) Analyze these reports to determine adherence to the
requirements of this part and accuracy in reporting.
Sec. 39.410 What qualifications must an audit firm meet to be
considered for auditing ISEP administration?
To be considered for auditing ISEP administration under this
subpart, an independent audit firm must:
(a) Be a licensed Certified Public Accountant Firm that meets all
requirements for conducting audits under the federal Single Audit Act;
(b) Not be under investigation or sanction for violation of
professional audit standards or ethics;
(c) Certify that it has conducted a conflict of interests check and
that no conflict exists; and
(d) Be selected through a competitive bidding process.
Sec. 39.411 How will the auditor report its findings?
(a) The auditor selected under Sec. 39.410 must:
(1) Provide an initial draft report of its findings to the
governing board or responsible Federal official for the school(s)
involved; and
(2) Solicit, consider, and incorporate a response to the findings,
where submitted, in the final audit report.
(b) The auditor must submit a final report to the Assistant
Secretary--Indian Affairs and all tribes served by each school
involved. The report must include all documented exceptions to the
requirements of this part, including those exceptions that:
(1) The auditor regards as negligible;
(2) The auditor regards as significant, or as evidence of
incompetence on the part of responsible officials, and that must be
resolved in a manner similar to significant audit exceptions in a
fiscal audit; or
(3) Involve fraud and abuse.
(c) The auditor must immediately report exceptions involving fraud
and abuse directly to the Department of the Interior Inspector
General's office.
Sec. 39.412 What sanctions apply for failure to comply with this
part?
(a) The employer of a responsible administrative official must take
appropriate personnel action if the official:
(1) Submits false or fraudulent ISEP-related counts;
(2) Submits willfully inaccurate counts of student participation in
weighted program areas; or
(3) Certifies or verifies submissions described in paragraphs
(a)(1) or (a)(2) of this section.
(b) Unless prohibited by law, the employer must report:
(1) Notice of final Federal personnel action to the tribal
governing body and tribal school board; and
(2) Notice of final tribal or school board personnel action to the
Director of OIEP.
Sec. 39.413 Can a school appeal the verification of the count?
Yes, a school may appeal to the Director any administrative action
disallowing any academic, transportation, supplemental program or
residential count. In this appeal, the school may provide evidence to
indicate the student's eligibility, membership or residency or adequacy
of a program for all or a portion of school year. The school must
follow the appeals process in 25 CFR part 2.
Subpart E--Contingency Fund
Sec. 39.500 What emergency and contingency funds are available?
(a) The Secretary must reserve 1 percent of funds from the
allotment formula to meet emergencies and unforeseen contingencies
affecting educational programs.
(b) At the end of each fiscal year the Secretary:
(1) Can carry over to the next fiscal year a maximum of 1 percent
the current year funds; and
(2) Must distribute all funds in excess of 1 percent equally to all
schools.
Sec. 39.501 What is an emergency or unforeseen contingency?
An emergency or unforeseen contingency is an event that meets all
of the following criteria:
(a) It could not be planned for;
(b) It is not the result of mismanagement, malfeasance, or willful
neglect;
(c) It could not have been covered by an insurance policy in force
at the time of the event;
(d) The Assistant Secretary determines that BIA cannot reimburse
the emergency from the facilities emergency repair fund; and
[[Page 8784]]
(e) It could not have been prevented by prudent action by officials
responsible for the educational program.
Sec. 39.502 How does a school apply for contingency funds?
To apply for contingency funds, a school must send a request to the
ELO. The ELO must send the request to the Director for consideration
within 48 hours of receipt. The Director will consider the severity of
the event and will attempt to respond to the request as soon as
possible, but in any event within 30 days.
Sec. 39.503 How can a school use contingency funds?
Contingency funds can be used only for education services and
programs, including repair of educational facilities.
Sec. 39.504 May Contingency Funds be carried over to a subsequent
fiscal year?
Bureau-operated schools may carry over funds to the next fiscal
year.
Sec. 39.505 What are the reporting requirements for the use of the
contingency fund?
(a) At the end of each fiscal year, BIA/OIEP shall send an annual
report to Congress detailing how the Contingency Funds were used during
the previous fiscal year.
(b) In conjunction with the distribution of unused contingency
funds, by October 1 of each year, the Bureau must send a letter to each
school and each tribe operating a school listing the allotments from
the Contingency Fund.
Subpart F--School Board Training Expenses
Sec. 39.600 Are Bureau-operated school board expenses funded by ISEP
limited?
Yes. Bureau-operated schools are limited to $8,000 or one percent
(1%) of ISEP allotted funds (not to exceed $15,000).
Sec. 39.601 Is school board training for Bureau-operated schools
considered a school board expense subject to the limitation?
No. School board training for Bureau-operated schools is not
considered a school board expense subject to the limitation.
Sec. 39.602 Can Grant and Contract schools spend ISEP funds for
school board expenses, including training?
No. Grant and Contract school board expenses and training are
funded with their administrative cost grant funds.
Sec. 39.603 Is school board training required for all Bureau-funded
schools?
Yes. Any new member of a local school board or an agency school
board must complete 40 hours of training within one year of
appointment.
Sec. 39.604 Is there a separate weight for school board training at
Bureau-operated schools?
Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school
board training and expenses at Bureau-operated schools.
Subpart G--Transportation
Sec. 39.700 What is the purpose of this part?
(a) This part covers how transportation mileage and funds for
schools are calculated under the ISEP transportation program. The
program funds transportation of students from home to school and
return.
(b) To use this part effectively, a school should:
(1) Determine its eligibility for funds using the provisions of
Sec. Sec. 39.702 through 39.708;
(2) Calculate its transportation miles using the provisions of
Sec. Sec. 39.710 and 39.711; and
(3) Submit the required reports as required by Sec. Sec. 39.721
and 39.722.
Sec. 39.701 What definitions apply to terms used in this subpart?
ISEP means the Indian School Equalization Program.
ISEP student count week means the last full week in September
during which schools count their student enrollment for ISEP purposes.
Unimproved roads means unengineered earth roads that do not have
adequate gravel or other aggregate surface materials applied and do not
have drainage ditches or shoulders.
Eligibility for Funds
Sec. 39.702 Can a school receive funds to transport residential
students using commercial transportation?
A school transporting students by commercial bus, train, airplane,
or other commercial modes of transportation will be funded at the cost
of the commercial ticket for:
(a) The trip from home to school in the Fall;
(b) The round-trip return home at Christmas; and
(c) The return trip home at the end of the school year.
Sec. 39.703 What ground transportation costs are covered for students
traveling by commercial transportation?
This section applies only if a school transports residential
students by commercial bus, train or airplane from home to school. The
school may receive funds for the ground miles that the school has to
drive to deliver the students or their luggage from the bus, train, or
plane terminal to the school.
Sec. 39.704 Are schools eligible for other funds to transport
residential students?
Schools may receive funds for actual chaperone expenses, excluding
salaries, during the transportation of students to and from home at the
beginning and end of the school year and at Christmas.
Sec. 39.705 Are schools eligible for other funds to transport special
education students?
A school that transports a special education student from home to a
treatment center and back to home on a daily basis as required by the
student's Individual Education Plan may count those miles for day
student funding.
Sec. 39.706 Are peripheral dormitories eligible for day
transportation funds?
Yes. If the peripheral dormitory is required to transport dormitory
students to the public school, the dormitory may count those miles
driven transporting students to the public school for day
transportation funding.
Sec. 39.707 Which student transportation miles are not eligible for
ISEP transportation funding?
(a) The following transportation uses are part of the instructional
program and are not eligible for transportation funding:
(1) Fuel and maintenance runs;
(2) Transportation home for medical or other emergencies;
(3) Transportation to treatment or special services programs;
(4) Transportation to after-school programs; and
(5) Transportation for day and boarding school students to attend
instructional programs less than full-time at locations other than the
school reporting the mileage.
(b) Examples of after-school programs covered by paragraph (a)(4)
of this section include:
(1) Athletics;
(2) Band;
(3) Detention;
(4) Tutoring, study hall and special classes; and
(5) Extra-curricular activities such as arts and crafts.
Sec. 39.708 Are non-ISEP eligible children eligible for
transportation funding?
Only ISEP-eligible children enrolled in and attending a school are
eligible for ISEP transportation funding. Public, charter, and
alternative school students
[[Page 8785]]
and children participating in preschool programs such as Head Start and
FACE are not eligible for ISEP transportation funding and should not be
transported on buses.
Calculating Transportation Miles
Sec. 39.710 How does a school calculate annual bus transportation
miles for day students?
To calculate the total annual bus transportation miles for day
students, a school must use the appropriate formula from this section.
In the formulas, Tu = Miles driven on Tuesday of the ISEP student count
week, W= Miles driven on Wednesday of the ISEP student count week, and
Th = Miles driven on Thursday of the ISEP student count week.
(a) For ISEP-eligible day students whose route is entirely over
improved roads, calculate miles using the following formula:
[GRAPHIC] [TIFF OMITTED] TP25FE04.000
(b) For ISEP-eligible day students whose route is partly over
unimproved roads, calculate miles using the following three steps.
(1) Step 1. Apply the following formula to miles driven over
improved roads only:
[GRAPHIC] [TIFF OMITTED] TP25FE04.001
(2) Step 2. Apply the following formula to miles driven over
unimproved roads only:
[GRAPHIC] [TIFF OMITTED] TP25FE04.002
(3) Step 3. Add together the sums from steps 1 and 2 to obtain the
total annual transportation miles.
Sec. 39.711 How does a school calculate annual bus transportation
miles for residential students?
To calculate the total annual transportation miles for residential
students, a school must use the procedures in paragraph (b) of this
section.
(a) The school can receive funds for the following trips:
(1) Transportation to the school at the start of the school year;
(2) Round trip home at Christmas; and
(3) Return trip to home at the end of the school year.
(b) To calculate the actual miles driven to transport students from
home to school at the start of the school year add together the miles
driven for all buses in the fall. If a school transports students over
unimproved roads, the school must separate the number of miles driven
for each bus into improved miles and unimproved miles. The number of
miles driven is the sum of:
(1) The number of miles driven on improved roads; and
(2) The number of miles driven on unimproved roads multiplied by
1.2.
(c) The annual miles driven for each school is the sums of the
mileage from paragraph (b)(1) and (b)(2) of this section multiplied by
4.
Reporting Requirements
Sec. 39.720 Why are there different reporting requirements for
transportation data?
In order to construct an actual cost data base, residential and day
schools must report data required by Sec. Sec. 39.721 and .722.
Sec. 39.721 What transportation information must off-reservation
boarding schools report?
(a) Each off-reservation boarding school that provides
transportation must report annually the information required by this
section. The report must:
(1) Be submitted to OIEP by August 1 and cover the preceding school
year;
(2) Include a Charter/Commercial and Air Transportation Form signed
and certified as complete and accurate by the School Principal and the
appropriate ELO; and
(3) Include the information required by paragraph (b) of this
section.
(b) Each annual transportation report must include the information
required by the following table.
------------------------------------------------------------------------
Information required for annual
Type of transport report
------------------------------------------------------------------------
(1) Bus........................... Actual number of miles traveled by
all buses or other vehicles to
transport students to school at the
beginning of the year multiplied by
the number of trips that students
take during the year, up to a
maximum of four.
(2) Aircraft...................... The following information for each
student traveling by air:
(i) A maximum of four one-way fares;
(ii) Roundtrip fare paid for
transportation home due to an
immediate family emergency;
(iii) Ground mileage from airport
arrival to school; and
(iv) If applicable, chaperone travel
costs (excluding salary) for school-
to-home travel.
------------------------------------------------------------------------
Sec. 39.722 What transportation information must day schools or on-
reservation boarding schools report?
(a) Each day school or on-reservation boarding school that provides
transportation must report annually the information required by this
section. The report must:
(1) Be submitted to OIEP by August 1 and cover the preceding school
year;
(2) Include a Day Student Transportation Form signed and certified
as complete and accurate by the School Principal and the appropriate
ELO; and
(3) Include the information required by paragraph (b) of this
section.
(b) Each annual transportation report must include the following
information:
(1) Fixed vehicle costs, including: the number and type of buses,
passenger size, and local GSA rental rate and duration of GSA contract;
(2) Variable vehicle costs;
(3) Mileage traveled to transport students to and from school on
school days, to cites of special services, and to extra-curricular
activities;
(4) Medical trips;
(5) Maintenance and Service costs; and
(6) Driver costs.
Miscellaneous Provisions
Sec. 39.730 Which standards must student transportation vehicles
meet?
All vehicles used by schools to transport students must meet or
exceed all appropriate Federal Motor Vehicle Safety Standards (FMVSS)
and State motor vehicle safety standards. The Bureau will not fund
transportation mileage and costs incurred transporting students in
vehicles that do not meet these standards.
Sec. 39.731 Can transportation time be used as instruction time for
day school students?
No. Transportation time cannot be used as instruction time for day
school students in meeting the minimum required hours for academic
funding.
Sec. 39.732 How does OIEP allocate transportation funds to schools?
OIEP allocates transportation miles based on the types of
transportation
[[Page 8786]]
programs that the school provides. To allocate transportation funds
OIEP:
(a) Multiplies the one-way commercial costs for all schools by four
to identify the total commercial costs for all schools;
(b) Subtracts the commercial cost total from the appropriated
transportation funds and allocates the balance of the transportation
funds to each school with a per-mile rate;
(c) Divides the balance of funds by the sum of the annual day miles
and the annual residential miles to identify a per-mile rate;
(d) For day transportation, multiplies the per-mile rate times the
annual day miles for each school; and
(e) For residential transportation, multiplies the per mile rate
times the annual transportation miles for each school.
Subpart H--Determining the Amount Necessary To Sustain an Academic
or Residential Program
Sec. 39.801 What is the formula to determine the amount necessary to
sustain a school's academic or residential program?
(a) The Secretary's formula to determine the minimal annual amount
necessary to sustain a bureau-funded school's academic or residential
program is as follows:
Student Unit Value x Weighted Student Unit = Annual Minimum Amount
(b) Sections 39.802 through 39.807 explain the derivation of the
formula in paragraph (a) of this section.
(c) If the annual minimum amount calculated under this section and
Sec. Sec. 39.802 through 39.807 is not fully funded, OIEP will use the
Indian School Equalization Formula to distribute funds to schools.
Sec. 39.802 What is the Student Unit value in the formula?
The student unit value is the value applied to each student in an
academic or residential program. There are two types of student unit
values: the student unit instructional value (SUIV) and the student
unit residential value (SURV).
(a) The student unit instructional value (SUIV) applies to a day
student. It is an annually established ratio of 1.0 that represents a
student in grades 4 through 6 of a typical non-residential program.
(b) The student unit residential value (SURV) applies to a
residential student. It is an annually established ratio of 1.0 that
represents a student in grades 4 through 6 of a typical residential
program.
Sec. 39.803 What is a Weighted Student Unit in the formula?
A weighted student unit is an adjusted ratio using factors in the
Indian School Equalization Formula to establish educational priorities
and to provide for the unique needs of specific students, such as:
(a) Students in grades kindergarten through 3 or 7 through 12;
(b) Special education students;
(c) Gifted and talented students;
(d) Distance education students;
(e) Vocational and industrial education students;
(f) Native Language Instruction students;
(g) Small schools;
(h) Personnel costs;
(i) Alternative schooling; and
(j) Early Childhood Education programs.
Sec. 39.804 How is the SUIV calculated?
The SUIV is calculated by the following 5-step process:
(a) Step 1. Use the adjusted national average current expenditures
(ANACE) of public and private schools determined by data from the U.S.
Dept. of Education-National Center of Education Statistics (NCES), the
Department of Defense Schools, the District of Columbia Schools, and
the Association of Boarding Schools for the last two school years for
which data is available.
(b) Step 2. Subtract the average specific Federal share (title I
and IDEA Part B) of the total revenue for bureau-funded elementary and
secondary schools for the last school year for which data is available
as reported by NCES (15%).
(c) Step 3. Subtract the administrative cost grant/agency area
technical services revenue as a percentage of the total revenue
(current expenditures) of BIA-funded schools for school year 1999-2000.
(d) Step 4. Subtract the transportation revenue as a percentage of
the total revenue (current revenue) BIA-funded schools for the last
school year for which data is available.
(e) Step 5. Add Johnson O'Malley funding.
Sec. 39.805 What was the student unit for Instruction value (SUIV)
for the school year 1999-2000?
The process in Sec. 39.804 looks like this, using figures for the
1999-2000 school year:
$8,030 ANACE
-1205 Average specific Federal share of total revenue for bureau-
funded schools.
-993 Cost grant/technical services revenue as a percentage total
revenue.
-658 Transportation revenue as a percentage of the total
revenue.
+85 Johnson O'Malley funding.
------------
$5,259 SUIV.
Sec. 39.806 How is the SURV calculated?
(a) The SURV is the adjusted national average current expenditures
for residential schools (ANACER) of public and private residential
schools. This average is determined using data from:
(1) The U.S. Department of Education-National Center of Education
Statistics (NCES);
(2) The U.S. Department of Defense schools;
(3) Elementary and secondary schools at Gallaudet University; and
(4) The Association of Boarding Schools' residential cost range for
the school year.
(b) Following the procedure in paragraph (a) of this section, the
SURV for school year 1999-2000 was $ 11,000.
Sec. 39.807 How will the Student Unit Value be adjusted annually?
(a) The Student Unit Value (SUV) will be adjusted annually by
dividing the previous year's Student Value into two parts and adjusting
each one as shown in this section.
(1) The first part consists of 85 percent of the previous year's
SUV. OIEP will adjust this portion using the personnel cost of living
increase of the Department of Defense.
(2) The second part consists of 15 percent the previous year's SUV.
OIEP will adjust this portion using the Consumer Price Index-Urban of
the Department of Labor.
(b) If the student unit value amount is not fully funded, the
schools will receive their pro rata share using the Indian School
Equalization Formula.
Sec. 39.808 What definitions apply?
The definitions in this section apply to the provisions in this
subpart.
Adjusted National Average Current Expenditure [ANACE] means the
actual current expenditures for pupils in fall
[[Page 8787]]
enrollment in public elementary and secondary schools for the last
school year for which data is available. These expenditures are
adjusted to reflect current expenditures of federally financed schools'
cost of day and residential programs financed by:
(1) The Department of Defense;
(2) The Department of Education; and
(3) The District of Columbia.
Current expenditures means expenses related to classroom
instruction, classroom supplies, administration, support services-
students and other support services and operations. Current
expenditures do not include facility operations and maintenance,
buildings and improvements, furniture, equipment, vehicles, student
activities and debt retirement.
4. Part 42 is revised to read as follows:
PART 42--STUDENT RIGHTS
Sec.
42.1 What general principles apply to this part?
42.2 What rights do individual students have?
42.3 How should a school address alleged violations of school
policies?
42.4 What are alternative dispute resolution processes?
42.5 When can a school use ADR processes to address an alleged
violation?
42.6 What does due process in a formal disciplinary proceeding
include?
42.7 What are a student's due process rights in a formal
disciplinary proceeding?
42.8 What are victims' rights in due process?
42.9 How must the school communicate individual student rights to
students, parents or guardians, and staff?
42.99 Information collection.
Authority: 5 U.S.C. 301, Pub. L. 107-110.
Sec. 42.1 What general principles apply to this part?
(a) This part applies to every Bureau-funded school. The
regulations in this part govern student rights and due process
procedures in disciplinary proceedings in all Bureau-funded schools. To
comply with this part, each school must:
(1) Respect the constitutional, statutory, civil and human rights
of individual students; and
(2) Respect the role of Tribal judicial systems where appropriate.
(b) All student rights, due process procedures, and educational
practices should, where appropriate or possible, afford students
consideration of and rights equal to the student's traditional Native
customs and practices.
Sec. 42.2 What rights do individual students have?
Individual students at Bureau-funded schools have, and must be
accorded, at least the following rights:
(a) The right to an education that may take into consideration
Native American or Alaska Native values;
(b) The right to an education that incorporates applicable Federal
and Tribal constitutional and statutory protections for individuals;
and
(c) The right to due process in instances of disciplinary actions
for alleged violation of school regulations for which the student may
be subjected to penalties.
Sec. 42.3 How should a school address alleged violations of school
policies?
(a) In addressing alleged violations of school policies, each
school must consider, to the extent appropriate, the reintegration of
the student into the school community.
(b) The school may address a student violation using alternative
dispute resolution (ADR) processes or the formal disciplinary process.
(1) When appropriate, the school should first attempt to use the
ADR processes described in Sec. 42.5 that may allow resolution of the
alleged violation without recourse to punitive action.
(2) Where ADR processes do not resolve matters or cannot be used,
the school must address the alleged violation through a formal
disciplinary proceeding under Sec. 42.6 consistent with the due
process rights described in Sec. 42.6.
Sec. 42.4 What are alternative dispute resolution processes?
Alternative dispute resolution (ADR) processes are formal or
informal processes that may allow resolution of the violation without
recourse to punitive action.
(a) ADR processes may:
(1) Include peer adjudication, mediation, and conciliation; and
(2) Involve appropriate customs and practices of the Indian Tribes
or Alaska Native Villages to the extent that these practices are
readily identifiable.
(b) For further information on ADR processes and how to use them,
contact the Office of Collaborative Action and Dispute Resolution by:
(1) Sending an e-mail to: cadr@ios.doi.gov; or
(2) Writing to: Office of Collaborative Action and Dispute
Resolution, Department of the Interior, 1849 C Street, NW., MS 5258,
Washington, DC 20240.
Sec. 42.5 When can a school use ADR processes to address an alleged
violation?
(a) The school may address an alleged violation through the ADR
processes described in Sec. 42.4, unless one of the conditions in
paragraph (b) of this section applies.
(b) The school must not use ADR processes in any of the following
circumstances:
(1) Where the law requires immediate expulsion (``zero tolerance''
laws);
(2) For a special education disciplinary proceeding where use of
ADR would not be compatible with the Individuals with Disabilities
Education Act (Pub. L. 105-17); or
(3) When all parties do not agree to using alternative dispute
resolution processes.
(c) If ADR processes do not resolve matters or cannot be used, the
school must address alleged violations through the formal disciplinary
proceeding described in Sec. 42.7.
Sec. 42.6 What does due process in a formal disciplinary proceeding
include?
Due process must include written notice of the charges and a fair
and impartial hearing as required by this section.
(a) The school must give the student written notice of charges
within a reasonable time before the hearing required by paragraph (b)
of this section. Notice of the charges includes:
(1) A copy of the school policy allegedly violated;
(2) The facts that allegedly constitute the violation;
(3) Information about any statements that the school has received
relating to the charge and instructions on how to obtain copies of
those statements; and
(4) Information regarding those parts of the student's record that
the school will consider in rendering a disciplinary decision.
(b) The school must hold a fair and impartial hearing before
imposing disciplinary action, except under the following circumstances:
(1) If the law requires immediate removal (such as, if the student
brought a firearm to school) or if there is some other statutory basis
for removal;
(2) In an emergency situation that seriously and immediately
endangers the health or safety of the student or others; or
(3) If the student (or the student's parent or guardian if the
student is less than 18 years old) chooses to waive entitlement to a
hearing.
(c) In an emergency situation under paragraph (b)(2) of this
section, the school:
(1) May temporarily remove the student;
[[Page 8788]]
(2) Must immediately document for the record the facts giving rise
to the emergency; and
(3) Must afford the student a hearing that follows due process, as
set forth in this part, within ten days.
Sec. 42.7 What are a student's due process rights in a formal
disciplinary proceeding?
A student has the following due process rights in a formal
disciplinary proceeding:
(a) The right to have present at the hearing the student's parents
or guardians (or their designee);
(b) The right to be represented by counsel (Legal counsel will not
be paid for by the Bureau-funded school or the Secretary);
(c) The right to produce, and have produced, witnesses on the
student's behalf and to confront and examine all witnesses;
(d) The right to a record of hearings of disciplinary actions,
including written findings of fact and conclusions in cases of
disciplinary action;
(e) The right to administrative review and appeal under school
policy;
(f) The right not to be compelled to testify against himself or
herself; and
(g) The right to have an allegation of misconduct and related
information expunged from the student's school record if the student is
found not guilty of the charges.
Sec. 42.8 What are victims' rights in due process?
In due process, each school must consider victims' rights when
appropriate.
(a) The victim's rights may include a right to:
(1) Participate in due process either in writing or in person;
(2) Provide a statement concerning the impact of the incident on
the victim; and
(3) Have the outcome explained to the victim and to his or her
parents or guardian by a school official, consistent with
confidentiality.
(b) For the purposes of this part, the victim is the actual victim,
and not his or her parents.
Sec. 42.9 How must the school communicate individual student rights
to students, parents or guardians, and staff?
Each school must:
(a) Develop a student handbook that includes local school policies,
definitions of suspension, expulsion, zero tolerance, and other
appropriate terms, and a copy of the regulations in this part;
(b) Provide all school staff a current and updated copy of student
rights and responsibilities before the first day of each school year;
(c) Provide all students and their parents or guardians a current
and updated copy of student rights and responsibilities every school
year upon enrollment; and
(d) Require students, school staff, and to the extent possible,
parents and guardians, to confirm in writing that they have received a
copy and understand the student rights and responsibilities.
Sec. 42.99 Information Collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information, subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part involves
collections of information subject to the PRA. These collections have
been approved by OMB under control number [to be determined].
5. New part 44 is added to read as follows:
PART 44--GRANTS UNDER THE TRIBALLY CONTROLLED SCHOOLS ACT
Sec.
44.101 What directives apply to a grantee under this part?
44.102 Does this part affect existing tribal rights?
44.103 Who is eligible for a grant?
44.104 How a grant can be terminated?
44.105 How does a tribe or tribal organization retrocede a program
to the Secretary?
44.106 How can the Secretary revoke an eligibility determination?
44.107 How does the Secretary reassume a program?
44.108 How must the Secretary make grant payments?
44.109 What happens if the grant recipient is overpaid?
44.110 What Indian Self-Determination Act provisions apply to grants
under the Tribally Controlled Schools Act?
44.111 Does the federal tort claims act apply to grantees?
44.200 Information collection.
Authority: Pub. L. 107-110, title 10, part D, the Native
American Education Improvement Act, part B, section 1138, Regional
Meetings and Negotiated Rulemaking.
Sec. 44.101 What directives apply to a grantee under this part?
In making a grant under this part the Secretary will use only:
(a) The regulations in this part; and
(b) Guidelines, manuals, and policy directives agreed to by the
grantee.
Sec. 44.102 Does this part affect existing tribal rights?
This part does not:
(a) Affect in any way the sovereign immunity from suit enjoyed by
Indian tribes;
(b) Terminate or change the trust responsibility of the United
States to any Indian tribe or individual Indian;
(c) Require an Indian tribe to apply for a grant; or
(d) Impede awards by any other Federal agency to any Indian tribe
or tribal organization to administer any Indian program under any other
law.
Sec. 44.103 Who is eligible for a grant?
The Secretary can make grants to Indian tribes and tribal
organizations that operate:
(a) A school under the provisions of Pub. L. 93-638;
(b) A tribally-controlled school (including a charter school,
community-generated school or other type of school) approved by tribal
governing body; or
(c) A bureau-funded school approved by tribal governing body.
Sec. 44.104 How can a grant be terminated?
A grant can be terminated only by one of the following methods:
(a) Retrocession by the tribe;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by BIA.
Sec. 44.105 How does a tribal governing body retrocede a program to
the Secretary?
(a) To retrocede a program, the tribal governing body must:
(1) Notify the Bureau in writing, by formal action of the tribal
governing body; and
(2) Consult with the Bureau to establish a mutually agreeable
effective date. If no date is agreed upon, the retrocession is
effective 120 days after the tribal governing body notified the Bureau.
(b) The Bureau must accept any request for retrocession that meets
the criteria in paragraph (a) of this section.
(c) After the tribal governing body retrocedes a program:
(1) The tribal governing body decides whether the school becomes
Bureau-operated or contracted under the Indian Self-Determination Act;
and
(2) If the governing body decides that the school is to be Bureau-
operated, the Bureau must provide education-related services in at
least the same quantity and quality as those that were previously
provided.
Sec. 44.106 How can the Secretary revoke an eligibility
determination?
(a) In order to revoke eligibility, the Secretary must:
[[Page 8789]]
(1) Provide the tribe or tribal organization with a written notice;
(2) Furnish the tribe or tribal organization with technical
assistance to take remedial action; and
(3) Provide an appeal process.
(b) The Secretary cannot revoke an eligibility determination if the
tribe or tribal organization is in compliance with 25 U.S.C. 2505(C).
(c) The Secretary can take corrective action if the school fails to
be accredited by January 8, 2005.
(d) In order to revoke eligibility for a grant, the Secretary must
send the tribe or tribal organization a written notice that:
(1) States the specific deficiencies that are the basis of the
revocation or reassumption;
(2) Explains what actions the tribe or tribal organization must
take to remedy the deficiencies.
(e) The tribe or tribal organization may appeal a notice of
revocation or reassumption by requesting a hearing under 25 CFR part
900, subpart L or P.
(f) After revoking eligibility, the Secretary will either contract
the program under 638 or operate the program directly.
Sec. 44.107 How does the Secretary reassume a program?
To reassume a program, the Secretary must comply with 25 U.S.C.
450m and 25 CFR part 900, subpart P.
Sec. 44.108 How must the Secretary make grant payments?
(a) The Secretary makes two annual grant payments.
(1) The first payment, consisting of 80 per cent of the amount that
the grantee was entitled to receive during the previous academic year,
must be made no later than July 1 of each year; and
(2) The second payment, consisting of the remainder to which the
grantee is entitled for the academic year, must be made no later than
December 1 of each year.
(b) For funds that become available for obligation on October 1,
the Secretary must make payments no later than December 1.
(c) If the Secretary does not make grant payments by the deadlines
stated in this section, the Secretary must pay interest under the
Prompt Payment Act. If the Secretary does not pay this interest, the
grantee may pursue the remedies provided under the Prompt Payment Act.
Sec. 44.109 What happens if the grant recipient is overpaid?
(a) If the Secretary has mistakenly overpaid the grant recipient,
then the Secretary will notify the grant recipient of the overpayment.
The grant recipient must return the overpayment within 30 days after it
receives the notification.
(b) When the grant recipient returns the money to the Secretary,
the Secretary will distribute the money equally to all schools in the
system.
Sec. 44.110 What Indian Self-Determination Act provisions apply to
grants under the Tribally Controlled Schools Act?
(a) The following provisions of part 900 apply to any grant to a
school administered under an ISDEAA contract or agreement.
(1) Subpart F; Standards for Tribal or Tribal Organization
Management Systems, Section 900.45.
(2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
(3) Subpart I; Property Donation Procedures.
(4) Subpart N; Post-award Contract Disputes.
(5) Subpart P; Retrocession and Reassumption Procedures.
(b) To resolve any disputes arising from the Secretary's
administration of the requirements of this part, the procedures in
subpart N of part 900 apply if the dispute involves any of the
following:
(1) Any exception or problem cited in an audit;
(2) Any dispute regarding the grant authorized;
(3) Any dispute involving an administrative cost grant;
(4) Any dispute regarding new construction or facility improvement
or repair, or
(5) Any dispute regarding our denial or failure to act on a request
for facilities funds.
Sec. 44.111 Does the Federal Tort Claims Act apply to grantees?
Yes, the Federal Tort Claims Act applies to grantees.
Sec. 44.200 Information collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information, subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part involves
collections of information subject to the PRA. These collections have
been approved by OMB under control number [to be determined].
6. New Part 47 is added to read as follows:
PART 47--UNIFORM DIRECT FUNDING AND SUPPORT
Sec.
47.1 What is the purpose of this part?
47.2 What definitions apply to terms in this part?
47.3 How does a school find out how much funding it will receive?
47.4 When does OIEP provide funding?
47.5 What is the school supervisor responsible for?
47.6 Who has access to local education financial records?
47.7 What are the expenditure limitations for Bureau-operated
schools?
47.8 Who develops the local educational financial plans?
47.9 What are the minimum requirements for the local educational
financial plan?
47.10 How is the local educational financial plan developed?
47.11 Can these funds be used as matching funds for other Federal
programs?
47.12 How are funds obligated?
47.99 Information collection.
Authority: Pub. L. 107-110.
Sec. 47.1 What is the purpose of this part?
This part contains the requirements for developing local financial
plans that schools need in order to receive direct funding from the
Bureau of Indian Affairs.
Sec. 47.2 What definitions apply to terms in this part?
Budget means that element in the local educational financial plan
which shows all costs of the plan by discrete programs and sub-cost
categories.
Consultation means soliciting and recording the opinions of school
boards regarding each element of the local educational financial plan
and incorporating these opinions to the greatest degree feasible in the
development of the local educational financial plan at each stage.
Director means the Director, Office of Indian Education Programs.
Local educational financial plan means the plan that:
(1) Programs dollars for educational services for a particular
Bureau-operated school; and
(2) Has been ratified in an action of record by the local school
board or determined by the superintendent under the appeals process in
25 CFR part 2.
OIEP means the Office of Indian Education Programs in the Bureau of
Indian Affairs of the Department of the Interior.
School means a Bureau-funded school.
Sec. 47.3 How does a school find out how much funding it will
receive?
The Office of Indian Education Programs (OIEP) will notify each
school
[[Page 8790]]
in writing of the annual funding amount it will receive as follows:
(a) No later than July 1st OIEP will let the school know the amount
that is 80 percent of its funding; and
(b) No later than September 30 OIEP will let the school know the
amount of the remaining 20 percent.
Sec. 47.4 When does OIEP provide funding?
By July 1st of each year OIEP will make available for obligation
all funds for that fiscal year that begins on the following October
1st.
Sec. 47.5 What is the school supervisor responsible for?
Each Bureau-operated school's school supervisor has the
responsibilities in this section. The school supervisor must do all of
the following:
(a) Ensure that the school spend funds in accordance with the local
financial plan, as ratified or amended by the school board;
(b) Sign all documents required to obligate or pay funds or to
record receipt of goods and services;
(c) Report at least quarterly to the local school board on the
amounts spent, obligated, and currently remaining in funds budgeted for
each program in the local financial plan;
(d) Recommend changes in budget amounts to carry out the local
financial plan, and incorporate these changes in the budget as ratified
by the local school board, subject to provisions for appeal and
overturn; and
(e) Maintain expenditure records in accordance with financial
planning system procedures.
Sec. 47.6 Who has access to local education financial records?
The Comptroller General, the Assistant Secretary, the Director, or
any of their duly authorized representatives have access for audit and
explanation purposes to any of the local school's accounts, documents,
papers, and records which are related to the schools' operation.
Sec. 47.7 What are the expenditure limitations for Bureau-operated
schools?
Each Bureau-operated school must spend all allotted funds in
accordance with applicable Federal regulations and local education
financial plans. If a Bureau-operated school and OIEP region or Agency
support services staff disagree over expenditures, the Bureau-operated
school must appeal to the Director for a decision.
Sec. 47.8 Who develops the local educational financial plans?
The local Bureau-operated school supervisor develops the local
educational financial plan in active consultation with the local school
board, based on the tentative allotment received.
Sec. 47.9 What are the minimum requirements for the local educational
financial plan?
(a) The local educational financial plan must include:
(1) Separate funds for each group receiving a discrete program of
services is to be provided, including each program funded through the
Indian School Equalization Program;
(2) A budget showing the costs projected for each program; and
(3) A certification provision meeting the requirements of paragraph
(b) of this section.
(b) The certification required by paragraph (a)(3) of this section
must provide for either:
(1) Certification by the chairman of the school board that the plan
has been ratified in an action of record by the board; or
(2) Except in the case of contract schools, certification by the
Agency Superintendent of Education that he or she has approved the plan
as shown in an action overturning the school board's rejection or
amendment of the plan.
Sec. 47.10 How is the local educational financial plan developed?
(a) The following deadlines apply to development of the local
financial plan:
(1) Within 15 days after receiving the tentative allotment, the
school supervisor must consult with the local school board on the local
financial plan.
(2) Within 30 days of receiving the tentative allotment, the school
board must review the local financial plan and, by a quorum vote,
ratify, reject, or amend, the plan.
(3) Within one week of the school board action under paragraph
(a)(2) of this section, the supervisor must either:
(i) Send the plan to the education line officer (ELO), along with
the official documentation of the school board action; or
(ii) Appeal the school board's decision to the ELO.
(4) The ELO will review the local financial plan for compliance
with laws and regulations and may refer the plan to the Solicitor's
Office for legal review. If the ELO notes any problem with the plan, he
or she must:
(i) Notify the local board and local supervisor of the problem
within two weeks of receiving the plan;
(ii) Make arrangements to assist the local school supervisor and
board to correct the problem; and
(iii) Refer the problem to the Director of the Office of Indian
Education if it cannot be solved locally.
(b) When consulting with the school board under paragraph (a)(1) of
this section, the school supervisor must:
(1) Discuss the present program of the school and any proposed
changes he or she wishes to recommend;
(2) Give the school board members every opportunity to express
their own ideas and views on the supervisor recommendations; and
(3) After the discussions required by paragraphs (b)(1) and (b)(2)
of this section, present a draft plan to the school board with
recommendations concerning each of the elements.
(c) If the school board does not act within the deadline in
paragraph (a)(2) of this section, the supervisor must send the plan to
the ELO for ratification. The school board may later amend the plan by
a quorum vote; the supervisor must transmit this amendment in
accordance with paragraph (a)(3) of this section.
Sec. 47.11 Can these funds be used as matching funds for other
Federal programs?
A school may use funds that it receives under this part as matching
funds for other Federal programs.
Sec. 47.12 How are funds obligated?
(a) Authority to obligate funds in the Bureau operated schools is
governed by provisions of the Bureau Manual (42 BIAM).
(b) Authority to obligate funds in tribally operated contract
schools is governed by contracting procedures of 25 CFR part 900.
(c) Authority to obligate funds in all Bureau funded and operated
schools is based upon the tentative allotment (Sec. Sec. 47.3 and
47.4) for the period beginning October 1 of any fiscal year. The
tentative allotment as restricted by a continuing resolution, if
applicable, would govern until computation and notification of initial
allotments as described in this subpart, as adjusted by the Director in
accordance with Sec. Sec. 39.501 through 39.503.
Sec. 47.99 Information collection.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part involves
collections of information subject to the PRA in Sec. Sec. 47.5, 47.7,
47.9, and 47.10. These collections have been
[[Page 8791]]
approved by OMB under control number [to be determined].
[FR Doc. 04-3714 Filed 2-24-04; 8:45 am]
BILLING CODE 4310-02-P