[Federal Register Volume 69, Number 132 (Monday, July 12, 2004)]
[Proposed Rules]
[Pages 41770-41779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15832]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 36 and 48

RIN 1076-AE51


Home-Living Programs and School Closure and Consolidation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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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 home-living programs and school 
closure and consolidation.

DATES: Comments on the proposed rule must be received on or before 
November 9, 2004.

ADDRESSES: You may submit comments, identified by the number 1076-AE51 
by any of the following methods:

--Direct Internet response: http://www.blm.gov/nhp/news/regulatory/index.htm, or at http://www.blm.gov, or at regulations.gov under Indian 
Affairs Bureau.
--Mail: Director (630), Bureau of Land Management, Eastern States 
Office, 7450 Boston Boulevard, Springfield, Virginia 22153, Attention: 
RIN 1076-AE51.
--Hand delivery: No Child Left Behind Act, 1620 L Street, NW., Room 
401, Washington, DC 20036.

    Send comments on the information collections in the proposal to: 
Interior Desk Officer (1076-AE51), Office of Information and Regulatory 
Affairs, OMB, (202) 395-6566 (facsimile); e-mail: omb.eop.gov">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: [email protected].

SUPPLEMENTARY INFORMATION As required by the No Child Left Behind Act 
of 2001 (Pub. L. 107-110; enacted January 8, 2002, referred to in this 
preamble as ``NCLBA'' 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 initially met in five week-long sessions in the 
months of June through October 2003 to develop regulations in the 
following six areas:
    1. Definition of ``Adequate Yearly Progress'';
    2. Attendance boundaries;
    3. Allocation formula for school funding;
    4. Direct funding procedures;
    5. Student rights; and
    6. Grants under the Tribally Controlled Schools Act.
    The Department published proposed rules developed by the Committee 
on February 25, 2004 (69 FR 8751). Since then, the Department has 
reconvened the Committee to develop regulations in the areas of closure 
or consolidation of schools and criteria for home-living situations. 
The Committee met on several occasions and developed the proposed rules 
being published today. The rules are discussed in detail in the 
remainder of this preamble, which is organized as follows:

I. Part 48--School Closure or Consolidation of Schools
    A. Substantial Curtailment of a Bureau School

[[Page 41771]]

    B. Procedures for School Closure, Consolidation, Transfer to 
Another Authority or Substantial Curtailment (Absent a Request From 
the Tribal Governing Body).
    C. First Notice
    D. Second Notice
    E. Further Procedures and Requirements
    F. Consultation Process
    G. Final Report on Proposed Action
    H. Conclusion
II. Part 36--Home Living Situations
    A. Home-living Staffing
    B. Home-living Program
    C. Home-living Privacy
    D. Conclusion
III. Procedural Matters
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Takings (E.O. 12630)
    D. Consultation With Indian Tribes (E.O. 13175)
    E. Paperwork Reduction Act
    F. National Environmental Policy Act
    G. Civil Justice Reform (E.O. 12988)
    H. Clarity of This Regulation
    I. Public Comment Solicitation

I. Part 48--School Closure or Consolidation of Schools

    The No Child Left Behind Act (NCLBA) required the Secretary of the 
Interior to develop draft regulations to implement section 1121(d) 
governing the ``closure or consolidation of schools.'' Although the 
NCLBA Negotiated Rulemaking Committee reached consensus in other areas, 
it did not reach consensus in the area of closure or consolidation of 
schools. The Committee could not reach consensus regarding this issue 
due to differing Federal and tribal legal interpretations of section 
1121(d) of the NCLBA.
    After much thoughtful deliberation, it became clear that consensus 
could not be reached on one particular issue: Whether section 
1121(d)(7) authorizes the Secretary (without the consent of a tribal 
governing body) to carry out the regulations promulgated under section 
1121(d)(3)-(5) to close, consolidate, or substantially consolidate a 
school. The Committee considered two differing legal interpretations of 
section 1121(d)(7). Some tribal members of the Committee interpreted 
the ``may'' in section 1121(d)(7) to condition the Secretary's ability 
to close, consolidate, transfer to another authority, or substantially 
curtail the programs of a school upon the mandatory approval of the 
affected tribal governing body. The interpretation of the Federal team 
was that ``may'' was not ``shall not'' and that approval from the 
tribal governing body was discretionary.
    Ultimately, the proposed rule attempts to incorporate the 
committee's discussions. The proposed rule authorizes the Secretary to 
close, consolidate, transfer to another authority or substantially 
curtail a school under the following three circumstances:
    (1) Under section 1121(d)(2)(A), the Secretary may close, 
consolidate, or substantially curtail a school based upon the request 
of the tribal governing body or the local school board;
    (2) Under section 1121(d)(2)(B), the Secretary may temporarily 
close, consolidate or substantially curtail a school if there was an 
immediate hazard to health and safety conditions that meets the 
requirements of section 1125(e); and
    (3) The Secretary may also close, consolidate, transfer to another 
authority, or substantially curtail a bureau-funded school if the 
Secretary provides the appropriate notice to the affected school, 
tribal governing body and community (as required by section 
1121(d)(4)), and follows all appropriate reporting requirements in 
section 1121(d)(5).
    The tribal team members agreed that the Secretary could take both 
the actions described in numbers 1 and 2. As previously discussed, the 
Committee could not come to consensus on the Secretary's authority to 
close, consolidate or substantially curtail a school (without tribal 
governing body approval) as outlined in number 3, above. Although 
consensus could not be reached by the Committee on the Secretary's 
authority to close or consolidate a school without tribal governing 
body approval, the Committee members did consider and draft proposed 
procedures that the Secretary would have to take if she were to begin 
such an action. Those procedures are discussed in Sec. Sec.  48.3-48.9 
of the proposed regulations.

A. Substantial Curtailment of a Bureau School

    The Committee also considered whether there is a difference between 
the substantial curtailment of a school's program and the substantial 
curtailment of a school itself. Some tribal members of the Committee 
interpreted the law to read that no program--including a pilot, 
discretionary, or competitive program--could be modified once a school 
had received funding for that program. The Federal Committee members 
and some tribal members believed that there was a distinction between 
substantial curtailment of a program and substantial curtailment of a 
school. The Federal team was concerned and asked the Committee to 
consider the Bureau's need to effectively monitor programmatic 
compliance. Ultimately, consensus was reached on a definition of 
substantial curtailment that defined it as, ``the reducing of the 
fundamental structure or scope of a `school'.''

B. Procedures for School Closure, Consolidation, Transfer to Another 
Authority or Substantial Curtailment (Absent a Request From the Tribal 
Governing Body)

    The Committee developed regulations for when the Department 
considers closing, consolidating, transferring to another authority, or 
substantially curtailing a bureau-funded school. The tribal team asked 
the Committee to consider procedures similar to those outlined in the 
law. The Federal team asked the Committee to consider more 
comprehensive regulations that would provide a more defined process. 
The Committee considered both views and ultimately proposed regulations 
that expanded on the framework provided for in the NCLBA, sections 
1121(d)(3)-(5). The Committee as a whole came to consensus on draft 
language that supplemented section 1121(d)(3)-(5). The tribal members 
argued that these regulations were contingent on tribal governing body 
approval. The Federal team argued that these regulations only applied 
when the Secretary took action to close, consolidate, or substantially 
curtail a school without tribal authorization. As proposed in this 
document, these regulations apply when the Secretary proposed to take 
an action that was not based on a tribal request.

C. First Notice

    In order to ensure the highest level of communication between the 
affected tribal governing body, school board, and school administrator, 
the Committee considered and determined that prompt and immediate 
notification of the involved parties must occur within 30 days of when 
the Secretary begins active consideration of the closure, 
consolidation, transfer of another authority or substantial curtailment 
of a bureau-funded school. The Committee considered how comprehensive 
this notice provision should be. Ultimately, the Committee determined 
that the first notification should include general information such as, 
the action proposed, the reasoning for such action and an outline of 
future steps.

D. Second Notice

    The Committee also considered and determined that an additional, 
more comprehensive notice should be given to the interested parties 
within 90 days after the first notice was sent. The purpose of this 
second notice is to encourage communication between the

[[Page 41772]]

affected tribe, school board and school administrator, community and 
the Department. The Committee determined that the second notice:
    (1) Was the appropriate time to begin to receive feedback from the 
parents or guardians of students who attend the affected school;
    (2) Was also the appropriate time to begin informing the 
appropriate committees of Congress of what action was being considered 
by the Secretary; and
    (3) Should be more specific and detailed as to the history of the 
proposed action, the alternatives that might help remedy the situation, 
the timetables for conducting the study required by NCLBA section 
1121(d)(5), and the timetable for consultation and communication. This 
timetable will include a monthly status report from the Director OIEP 
to the interested parties (Sec.  43.8).

E. Further Procedures and Requirements

    The Committee considered the need for comprehensive public comment. 
Therefore, it recommends that the Director allow a 90-day comment 
period after the second notice is issued.

F. Consultation Process

    The Committee considered the importance of direct tribal community 
input regarding any proposed decision to close, consolidate, transfer 
to another authority or substantially curtail a school. Therefore, the 
consultation process (Sec.  48.6) requires the Director to hold at 
least one public meeting in the affected community to listen and gather 
information. In addition, the Director must also hold at least one 
public meeting to present information to support the proposed action.
    The Committee was concerned about situations where a school may 
serve more than one tribe. To deal more effectively with that 
situation, the regulations require the Director to hold a meeting in a 
single location and invite the governing bodies of all tribes involved.

G. Final Report on Proposed Action

    The Committee considered the importance of a thorough and 
comprehensive record for the proposed action. Therefore, the 
regulations require the Director OIEP to prepare a final written report 
on the proposed action as required in NCLBA section 1121(d)(5) and 
submit it to the tribe, tribal governing body, local school board, 
school administrator, and the appropriate committees of Congress. The 
report must describe all of the following:
    (1) The impact of this proposed action on students;
    (2) The students served by the affected school;
    (3) Alternative services available to the affected students; and
    (4) The consultation process that was undertaken.

H. Conclusion

    During negotiated rulemaking, differences in statutory 
interpretation are not uncommon. Although every effort is made by all 
parties to reach consensus, differences in legal interpretation often 
prevent negotiated rulemaking for reaching consensus. When consensus is 
not reached in negotiated rulemaking, it is the Department's 
responsibility to develop and publish a proposed regulation. The 
Committee encourages all tribal communities who are concerned regarding 
both national home-living standards and the issue of school closure and 
consolidation to provide comments during the 120 day public comment 
period. This public comment period is invaluable in assisting the 
Department in fulfilling both the letter and the intent of the NCLBA.

II. Part 36--Home-Living Situations

    The No Child Left Behind Negotiated Rulemaking Committee reconvened 
February 2-7, 2004, to develop recommendations for proposed regulations 
regarding the National Criteria for Home-Living Situations under the No 
Child Left Behind Act of 2001 (Act), section 1122. In developing the 
proposed regulations for home-living (dormitories/residential) 
situations, the Committee considered draft regulations proposed by 
Bureau of Indian Affairs school and residential administrators. These 
draft regulations formed the foundation of the Committee's consensus 
and proposed regulations published today. The Committee decided to 
organize the proposed regulations into three broad categories: Home-
living staffing, Home-living programs, and Home-living privacy.

A. Home-Living Staffing

    In order to reach consensus on these proposed regulations, the 
Committee worked to develop home-living standards that were feasible 
within the existing budget process and other parameters governing the 
delivery of residential services. In order to allow for resource and 
budget planning, the Committee recommends that the regulations 
regarding higher qualifications for staff and lower student-to-staff 
ratios be implemented in the 2009-2010 school year (Sec.  36.75).
    Many Committee members and public commenters expressed concern 
about current student-to-staff ratios and the qualifications for home-
living staff. Public comments and tribal caucus reports indicated a 
need to lower the student-to-staff ratios in order to better serve 
students in home-living situations. Federal Committee members, some 
tribal Committee members, and some public commenters indicated a need 
to raise qualifications of home-living staff to better serve the 
students housed in the residential programs. The Committee discussed 
requiring a minimum of 32 hours of college credit in a field related to 
child development and at least one year of relevant experience. The 
Committee decided, in Sec.  36.75 to require that new program staff 
have at least 32 post-secondary semester hours (or 48 quarter hours) in 
an applicable academic discipline, including fields working with 
children, such as child development, education, behavioral sciences or 
cultural studies. The Home-living Manager and Home-living Supervisor 
now also are required to have an associate's degree and bachelor's 
degree, respectively.
    The Committee also considered the behavioral health needs of 
students in BIA's residential program. The Committee discussed what the 
appropriate ratio of behavioral health staff to students and the 
qualifications and licensure of this staff should be. Tribal Committee 
members expressed concern about licensure and objected to requiring 
State licensure for behavioral health staff. Tribal Committee members 
advocated allowing tribal licensure. To reach consensus, the Committee 
agreed that the first full-time behavioral health staff member in a 
home-living program must be either a Licensed Social Worker (LSW) or a 
Licensed Professional Counselor (LPC) licensed to practice in the State 
where the home-living program is located (Sec.  36.79). Other 
behavioral health staff supervised by this person may come from a 
variety of fields, including art, music, physical education, or 
academic subjects and are not required to be LSW's or LPC's. All 
behavioral health staff must have tribal, State, or Federal licensure 
or certification.
    The Committee also considered the difficulty in finding behavioral 
health staff to work all hours at dormitory facilities. In addition, 
the Committee recognized the importance of limiting the time students 
are removed from the academic setting. Therefore, the Committee 
proposed guidelines for work hours and a maximum number of

[[Page 41773]]

hours a student may receive behavioral health services during school 
hours (Sec.  36.82).
    The Committee considered the need for on-site medical health 
services and determined that these services were readily available 
through the Indian Health Service. However, in large or isolated home-
living situations the Committee recommends retaining a nurse on staff 
to provide those services.

B. Home-Living Program

    The Committee discussed the need for a home-living program that 
promotes both personal and academic achievement. The Committee agreed 
that program requirements are best determined at the local level. The 
Committee also considered and drafted regulations that require 
residential programs to make available specific activities such as 
physical activities on weekends, structured study hours, native 
language and cultural activities, wellness and other personal education 
activities (Sec.  36.92). Some Committee members questioned the 
appropriateness of some of the suggested activities, such as native 
language or sex education, but deferred to those with home-living 
situation experience and agreed to the inclusion of these items as 
recommended activities.
    The Committee also considered and drafted regulations that required 
each home-living situation to distribute a home-living handbook that 
discussed student conduct and other procedural information (Sec.  
36.93).
    Another issue the committee considered was provision of health 
services to students in home-living situations. The Committee decided 
that the best way to facilitate efficient delivery of health services 
to students in home-living situations was through agreements between 
the Office of Indian Education Programs and the Indian Health Service. 
The Committee also drafted a regulation to cover those occasions when, 
because of illness, it may be necessary to remove a student from the 
rest of the student body. Another section addresses removal of a 
student for emergency behavioral or health reasons (Sec.  36.98).

C. Home-Living Privacy

    The Committee determined by consensus that standards relating to 
heating, cooling, and lighting of dormitories for home-living 
situations should be deferred for later consideration by the negotiated 
rulemaking committee charged with negotiating school construction under 
section 1125 of the Act. The Committee determined that it did not have 
the necessary expertise to define standards for these areas. However, 
the Committee felt it was appropriate to give general guidance on what 
types of space and resources must be made available to students in 
home-living situations. The Committee also:
    (1) Discussed the importance of students' ability to safely store 
personal belongings and other privacy issues (Sec.  36.110); and
    (2) Acknowledged that any storage compartments were the property of 
the dormitory and subject to random search.

D. Conclusion

    The Committee considered drafting provisions to implement section 
1122(d) of the Act, which would allow grant and contract schools to 
waive the home-living standards in the rule. As a result, the proposed 
regulation outlines the process by which a tribal governing body or 
school board may petition the Director of the Office of Indian 
Education Programs for a waiver of these proposed standards and the 
implementation of alternate tribal standards. Finally, the Committee 
considered the need for accountability in the home-living programs and 
proposed regulations requiring an annual report from each residential 
program to the local school board, the tribal governing body, the 
Office of Indian Education Programs, and the Secretary of the Interior.

III. Procedural Matters

A. 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 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. The rule does not pertain to funding and is not 
expected to have an effect on budgets.
    (4) OMB has determined that this rule raises novel legal or policy 
issues.

B. 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.).

C. 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 federalism 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.

D. 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. 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.

E. 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

[[Page 41774]]

incorporated in this proposed rule. Comments on this information must 
be received by August 11, 2004. You may submit your comments to the 
Desk Officer for the Department of the Interior at OMB by facsimile at 
(202) 395-6566 or by e-mail at 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 methodology and assumptions 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 striven 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.
    A synopsis of the new information collection burdens for parts 36 
and 48 is provided below. Burden is defined as the total time, effort, 
or financial resources expended (including filing fees) by persons to 
generate, maintain, retain, or disclose or provide information to or 
for a Federal agency.

----------------------------------------------------------------------------------------------------------------
                                                                    Burden per     Total annual    Cost  @ $12/
           CFR section               Number of     Responses per     response         burden           hour
                                    respondents     respondent        (hours)         (hours)        (dollars)
----------------------------------------------------------------------------------------------------------------
36.75(b)(2).....................              50               1             .25           12.50             150
36.86...........................            1110               1           40.00       44,400.00         532,800
36.93...........................                     Covered by existing OMB approval 1076-0163
36.94...........................                    Covered by existing OMB approval 1076-0163
36.97(c)........................              10               1             .25            2.50              30
36.100(g).......................              76               1             .02            1.52              18
36.111..........................              19               1             .50            9.50             114
36.111(a).......................              19               1           40.00          760.00           9,120
36.120..........................                    Covered by existing OMB approval 1076-0122
48.2............................               1               1            1.00            1.00              12
                                 -----------------
    Totals......................            1205  ..............  ..............       45,187.00         542,244
----------------------------------------------------------------------------------------------------------------


    [Note:
     There are 53 residential schools, of which 29 are Bureau-
operated = 24 tribally operated. There are 14 peripheral 
dormitories, of which 1 is Bureau-operated = 13 tribally operated. 
Thus, we must cover the collection of information from 37 of the 67 
home-living residences. The cost of reporting and recordkeeping 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 
requirements submission) completed, the cost of the time spent on 
the activity, and other miscellaneous costs that may be associated 
with obtaining the information needed to fulfill the information 
collection requirements in these parts.]

    Under Sec.  36.75(b)(2) we estimate that 50 of the present staff 
will not meet the new qualifications and will request a waiver; we 
expect that others will retire before having to meet the new 
qualification requirements.
    Under Sec.  36.86, we estimate that the tribal schools will train 
1,110 staff for a total burden of 44,400 hours at a cost of $ 532,800. 
Each year, the schools are required to train new employees and update 
the training of present employees.
    Under Sec.  36.97(c), we estimate that about 10 parents may request 
to opt out of any non-emergency services, taking about .25 hours each 
for a total of 2.5 hours annually at a cost of $30 per year.
    Under Sec.  36.100(g), we estimate that 76 students will be 
reported ill and unable to attend school; we estimate that it will take 
.02 hours to report each for a total annual burden of 1.52 hours, 
costing $18.24 annually.
    Under Sec.  36.111, a tribe, tribal governing body, or local school 
board may waive in whole or in part the standards established under 
this section. While the question and answer does not specify that these 
entities must submit a request, it is implicit that they will have to 
submit a request to waive such standards. We estimate that each year 19 
tribally operated dormitories would request a waiver of the standards 
as being otherwise inappropriate for the dormitory. We also estimate 
that it would take these entities \1/2\ hour to compose such a waiver 
request through a letter to the Secretary.
    Under Sec.  36.111(a), a tribe, tribal governing body, or local 
school board that waives the standards established under this section 
must submit proposed alternative standards to the Office of Indian 
Education Programs. We estimate that 19 respondents (corresponding to 
the estimate for those requesting waivers) will submit proposed 
alternative standards and that the standards will require approximately 
40 hours to prepare.
    Under Sec.  48.2, we expect that a tribe will only rarely request 
closure, consolidation or substantial curtailment of a school. Because 
this will be such a rare occurrence, we estimate 1 per year at a burden 
of 1 hour and a cost of $12.

F. 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.

G. 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.

H. 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''

[[Page 41775]]

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: 
[email protected].

I. 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-AE51.
    (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.

List of Subjects

25 CFR Part 36

    Indians--Education, Schools, Elementary and Secondary education 
programs, grant programs--Indians, Government programs--education.

25 CFR Part 48

    Indians--Education, Schools, Students, Elementary and Secondary 
education programs.

    Dated: June 4, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.

    For the reasons given in the preamble, parts 36 and 48 of Title 25 
of the Code of Federal Regulations are proposed to be amended as 
follows:
* * * * *
    1. Subpart H of part 36 is revised to read as follows:

PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF 
INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS

Subpart H--Home-Living Programs

Sec.
36.70 What terms do I need to know?
36.71 What is the purpose of this part?

Staffing

36.75 What qualifications must home living staff possess?
36.76 Must an identified staff member be in charge of all home-
living operations?
36.77 Are home-living programs required to have other home-living 
staffing requirements?
36.78 What are the staffing requirements for home-living programs 
offering less than 5 nights service?
36.79 What are the home-living behavioral staff/student ratio 
requirements?
36.80 If a school has separated boys' and girls' home-living 
programs, may the same behavioral staff be used for each program?
36.81 May a home-living program use support staff or teachers to 
meet behavioral health staffing requirements?
36.82 May behavioral health staff provide services during the 
academic school day?
36.83 How many hours can a student be taken out of the academic 
setting to receive behavioral health services?
36.84 Can a program hire or contract behavioral health professionals 
to meet staffing requirements?
36.85 Is a nurse required to be available in the evenings?
36.86 Are there staff training requirements?

Program Requirements

36.90 What recreation, academic tutoring, student safety and health 
care services must home-living programs provide?
36.91 What are the program requirements for behavioral health 
services?
36.92 Are there any activities that must be offered by a home-living 
program?
36.93 Is a home-living handbook required?
36.94 What must a home-living handbook contain?
36.95 What sanitary standards must home-living programs meet?
36.96 May students be required to assist with daily or weekly 
cleaning?
36.97 What basic requirements must a program's health services meet?
36.98 Must the home-living program have an isolation room for ill 
children?
36.99 Are immunizations required for residential program students?
36.100 Are there minimum requirements for student attendance checks?
36.101 How often must students who have been separated for emergency 
health or behavioral reasons be supervised?
36.102 What student resources must be provided by a home-living 
program?
36.103 Are there requirements for multipurpose spaces in home living 
programs?

Privacy

36.110 Must programs provide space for storing personal effects?

Waivers and Accountability

36.111 Can a tribe, tribal governing body or local school board 
waive the home-living standards?
36.112 What are the consequences for failing to meet the 
requirements of this part?
36.120 What type of reporting is required to ensure accountability?

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115 
Stat. 1425).


Sec.  36.70  What terms do I need to know?

    Home-living Manager means the employee responsible for direct 
supervision of the home living program staff and students.
    Home-living 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 
dormitory.
    Home living Program Staff means the employee(s) responsible for 
direct supervision of students in the home living area.
    Home-living Supervisor means the employee with overall 
administrative responsibility for supervising students, programs and 
personnel in the home living area.


Sec.  36.71  What is the purpose of this part?

    The purpose of this part is to establish standards for Home-living 
situations.

[[Page 41776]]

Staffing


Sec.  36.75  What qualifications must home living staff possess?

    (a) Home living staff must possess the qualifications shown in the 
following table:

------------------------------------------------------------------------
           Position                        Required training
------------------------------------------------------------------------
(1) Home-living Supervisor...  Must be qualified based on size and
                                complexity of the school but at minimum
                                possesses a bachelor's degree.
(2) Home-living Manager......  Must be qualified based on the size and
                                complexity of the student body but must
                                at a minimum have an associate's degree
                                no later than 2008.
(3) Home living Program Staff  Must have at least 32 post-secondary
                                semester hours (or 48 quarter hours) in
                                an applicable academic discipline,
                                including fields related to working with
                                children, such as, child development,
                                education, behavioral sciences and
                                cultural studies.
------------------------------------------------------------------------

    (b) A person employed as a home-living program staff when this part 
is published in final:
    (1) Should meet the requirements of paragraph (a) of this section 
by the 2009-2010 school year; and
    (2) May, upon showing good cause, petition the school supervisor 
(or the home-living supervisor for peripheral dorms) for a waiver from 
the new qualifications.


Sec.  36.76  Must an identified staff member be in charge of all home-
living operations?

    Yes, an identified staff member must be in charge of all home-
living operations. The person in charge is the home-living supervisor, 
the administrative head of the home-living program who has the 
authority to ensure the successful functioning of all phases of the 
home-living program. The program must ensure clear lines of authority 
under an organizational chart approved by the local board responsible 
for operations of the home-living program.


Sec.  36.77  Are home-living programs required to have other home-
living staffing requirements?

    Home-living programs must meet the staffing requirements of this 
section.
    (a) Effective with the 2009-2010 school year, each home-living 
program must maintain the following student minimum supervisory 
requirements on weekdays:

------------------------------------------------------------------------
              Grade level                      Time of day         Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)................  Morning.................    1:20
                                        During school...........     (1)
                                        Evening.................    1:20
                                        Night...................    1:40
High School (Grade 7-12)..............  Morning.................    1:40
                                        During school...........     (1)
                                        Evening.................    1:30
                                        Night...................   1:50
------------------------------------------------------------------------
\1\ As school needs.

    (b) The following staffing ratios apply on weekends:

------------------------------------------------------------------------
              Grade level                      Time of day         Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)................  Morning/day.............    1:20
                                        Evening.................    1:20
                                        Night...................    1:40
High School (Grade 7-12)..............  Morning/day.............    1:40
                                        Evening.................    1:30
                                        Night...................   1:50
------------------------------------------------------------------------
 \1\ As school needs.

Sec.  36.78  What are the staffing requirements for home-living 
programs offering less than 5 nights service?

    For home-living programs providing less than 5 nights service, the 
staffing levels from Sec.  36.77 apply. To fill this requirement, the 
program must use only employees who work a minimum of 20 hours per 
week.


Sec.  36.79  What are the home-living behavioral staff/student ratio 
requirements?

    Behavioral health staff is necessary in home-living programs to 
address issues, such as abuse, neglect, trauma, cultural conflict, and 
lack of school success. Each home-living program must provide a minimum 
of one half-time behavioral health professional for every 50 students.
    (a) The program may fill the staffing requirements of this section 
by using contract services, other agencies (including the Indian Health 
Service) or private/nonprofit volunteer service organizations.
    (b) Off-reservation home-living programs should consider providing 
one full-time behavioral health professional for every 50 students.
    (c) For purposes of this section, a one half-time behavioral health 
professional is one that works for the home-living program a minimum of 
20 hours per week.


Sec.  36.80  If a school has separated boys' and girls' home-living 
programs, may the same behavioral staff be used for each program?

    Yes, a program may use the same behavioral staff for both boys' and 
girls' programs. However, behavioral health staffing requirements are 
based on combined enrollment during the home-living count period.


Sec.  36.81  May a home-living program use support staff or teachers to 
meet behavioral health staffing requirements?

    No, a home-living program must not use support staff or teachers to 
meet behavioral health staffing requirements. The only exception is if 
the individual support staff employee has the appropriate behavioral 
health license or certification.


Sec.  36.82  May behavioral health staff provide services during the 
academic school day?

    Behavioral health staff must average at least 75 percent of their 
work hours with students in their dormitories. These work hours must 
occur outside of the academic school day, except in emergency 
situations as deemed by the administrative head of the home-living 
program or designee. The purpose of this requirement is to maximize 
contact time with students in their home-living setting.


Sec.  36.83  How many hours can a student be taken out of the academic 
setting to receive behavioral health services?

    A student may spend no more than 5 hours per week out of the 
academic setting to receive behavioral health services from the home-
living behavioral health staff, except for emergency situations.


Sec.  36.84  Can a program hire or contract behavioral health 
professionals to meet staffing requirements?

    A program may hire or contract behavioral health professionals to 
meet staffing requirements.

[[Page 41777]]

    (a) At least one individual must be a Licensed Professional 
Counselor (LPC) or a Licensed Social Worker (LSW) who is licensed to 
practice at the location where the services are provided.
    (b) For additional staffing, other individuals with appropriate 
certifications and licenses are acceptable to meet staffing 
requirements.


Sec.  36.85  Is a nurse required to be available in the evenings?

    No, a program is not required to make a nurse (LPN or RN) available 
in the evenings. However, this is encouraged for home-living programs 
with an enrollment greater than 300 or for programs that are more than 
50 miles from available services.


Sec.  36.86  Are there staff training requirements?

    Yes. All home-living program staff must have the appropriate 
certification and requirements up to date and on file. Programs must 
provide annual and continuous professional training and development 
appropriate to the certification and licensing requirements.
    (a) Annually, all home-living staff must be given the following 
training before the first day of student occupancy for the year:
    (1) First Aid/Safety/Emergency & crisis preparedness;
    (2) CPR--Automated External Defibrilator;
    (3) Student Checkout Policy;
    (4) Confidentiality (Health Information Patient Privacy Act);
    (5) Medication Administration;
    (6) Student Rights;
    (7) Child Abuse Reporting and Protection Standards;
    (b) Home-living staff must be given the following training annually 
at any time during the year:
    (1) De-escalation/conflict resolution;
    (2) Substance Abuse issues;
    (3) Ethics;
    (4) Parent training (parenting skills for home-living program 
staff)/child care;
    (5) Special education and working with students with disabilities;
    (6) Student supervision skills;
    (7) Child development; and
    (8) Basic counseling skills.

Program Requirements


Sec.  36.90  What recreation, academic tutoring, student safety and 
health care services must home-living programs provide?

    All home-living programs must provide for appropriate student 
safety, academic tutoring, recreation, and health care services for 
their students, as deemed necessary by the local school board or home-
living program board.


Sec.  36.91  What are the program requirements for behavioral health 
services?

    A home-living program's behavioral health program must include:
    (a) Behavioral health screening/assessment;
    (b) Diagnosis;
    (c) Treatment Plan;
    (d) Treatment and placement;
    (e) Evaluation; and
    (f) Record of services, in coordination with the student's 
Individual Education Plan, where appropriate.


Sec.  36.92  Are there any activities that must be offered by a home-
living program?

    Yes, a home-living program must make available the following 
activities:
    (a) One hour per day of scheduled, structured physical activity 
Monday through Friday and 2 hours of scheduled physical activities on 
the weekends;
    (b) One hour per day of scheduled, structured study at least four 
days per week for all students and additional study time for students 
who are failing any classes;
    (c) Tutoring during study time;
    (d) Native language or cultural activities; and
    (e) Character, health, wellness, and sex education.


Sec.  36.93  Is a home-living handbook required?

    Yes, each program must publish a home-living handbook, which may be 
incorporated into a general student handbook. The home-living program 
must:
    (a) Provide each student with a copy of the handbook;
    (b) Provide all school staff and students with a current and 
updated copy of student rights and responsibilities before the first 
day of school;
    (c) Conduct an orientation for all students on the handbook; and
    (d) Ensure that all students, school staff and, to the extent 
possible, parents and guardians confirm in writing that they have 
received a copy and understand the home-living handbook.


Sec.  36.94  What must a home-living handbook contain?

    A home-living handbook must contain all of the following, and may 
include additional information:
    (a) Mission/Vision Statement;
    (b) Discipline Policy;
    (c) Parent/Student Rights and Responsibilities;
    (d) Confidentiality;
    (e) Sexual Harassment Policy;
    (f) Violence/Bullying Policy;
    (g) Home-living Policies and Procedures;
    (h) Services Available;
    (i) Personnel and Position Listing;
    (j) Emergency Procedures and Contact Numbers;
    (k) Bank Procedures;
    (l) Transportation Policy;
    (m) Check-Out Procedures;
    (n) Dress Code;
    (o) Drug/Alcohol;
    (p) Computer Usage Policy;
    (q) Medication administration; and
    (r) Isolation/separation policy.


Sec.  36.95  What sanitary standards must home-living programs meet?

    Each home-living program must meet all of the following standards:
    (a) Restrooms, showers, and common areas must be cleaned daily;
    (b) Rooms must be cleaned daily;
    (c) Linens must be changed and cleaned weekly;
    (d) Linens are to be provided;
    (e) Toiletries must be provided; and
    (f) Functional washing machines and dryers must be provided.


Sec.  36.96  May students be required to assist with daily or weekly 
cleaning?

    Yes, students can be required to assist with daily or weekly 
cleaning. However, the ultimate responsibility of cleanliness rests 
with the home living supervisor and local law or rules regarding 
chemical use must be followed.


Sec.  36.97  What basic requirements must a program's health services 
meet?

    (a) Each home-living program must make available basic medical, 
dental, vision and other necessary health services for all students 
residing in the home-living program, subject to agreements between the 
Office of Indian Education Programs and the Indian Health Service.
    (b) Each home-living program must have written procedures for 
dealing with emergency health care issues.
    (c) Parents or guardians may opt out of any non-emergency services 
by submitting a written request.
    (d) The home living supervisor or designee must act in loco 
parentis when the parent or guardian cannot be found.


Sec.  36.98  Must the home-living program have an isolation room for 
ill children?

    Yes, the home-living program must have an isolation room for ill 
children. At least two isolation rooms must be made available for use 
by students with contagious conditions--one for boys and one for girls. 
The isolation rooms should have a separate access to shower and 
restroom facilities. Students isolated for contagious illness must be 
supervised as frequently and as closely as the circumstances and 
protocols require, but at least every 30 minutes.

[[Page 41778]]

Sec.  36.99  Are immunizations required for residential program 
students?

    Each student must have all immunizations required by state, local, 
or tribal governments before being admitted to a home-living program. 
Annual flu shots are not required but are encouraged.


Sec.  36.100  Are there minimum requirements for student attendance 
checks?

    Yes, there are minimum requirements for student attendance checks 
as follows:
    (a) All students must be physically accounted for four times daily;
    (b) Each count must be at least two hours apart;
    (c) If students are on an off-campus activity, physical accounts of 
students must be made at least once every two hours or at other 
reasonable times depending on the activity;
    (d) At night all student rooms should be physically checked at 
least once every hour;
    (e) If a student is unaccounted for, the home-living program must 
follow its established search procedures; and
    (f) If a student is going to be absent from school, the home-living 
program is required to notify the school.


Sec.  36.101  How often must students who have been separated for 
emergency health or behavioral reasons be supervised?

    Students who have been separated for emergency behavioral or health 
reasons must be supervised as frequently and as closely as the 
circumstances and protocols require. No student will be left 
unsupervised for any period until such factors as the student's health 
based on a medical assessment, the safety of the student, and any other 
applicable guidance for dealing with behavior or health emergencies are 
considered.


Sec.  36.102  What student resources must be provided by a home-living 
program?

    The following minimum resources must be available at all home-
living programs:
    (a) Library resources;
    (b) A copy of each textbook used by the academic program or the 
equivalent for peripheral dorms; and
    (c) Reasonable access to a computer with internet access to 
facilitate homework and study.


Sec.  36.103  Are there requirements for multipurpose spaces in home 
living programs?

    Home living programs must provide adequate areas for sleeping, 
study, recreation, and related activities.

Privacy


Sec.  36.110  Must programs provide space for storing personal effects?

    Yes, students are entitled to private personal spaces for storing 
their own personal effects, including at least one lockable closet, 
dresser drawer, or storage space. However, all drawers, dressers, 
storage space, or lockable space are the property of the home-living 
program and are subject to random search.

Waivers and Accountability


Sec.  36.111  Can a tribe, tribal governing body or local school board 
waive the home-living standards?

    A tribal governing body or local school board may waive some or all 
of the standards established by this part if the body or board 
determines that the standards are inappropriate for the needs of the 
tribe's students.
    (a) If a tribal governing body or school board waives standards 
under this section, it must, within 60 days, submit proposed 
alternative standards to the Director of the Office of Indian Education 
Programs.
    (b) Within 90 days of receiving a waiver and proposal under 
paragraph (a) of this section, the Director must either:
    (1) Approve the submission; or
    (2) Deliver to the governing body or school board a written 
explanation of the good cause for rejecting the submission.
    (c) If the Director rejects a submission under paragraph (c) of 
this section, the governing body or school board may submit another 
waiver and proposal for approval. The standards in this part remain in 
effect until the Director approves alternative standards.


Sec.  36.112  Can a home-living program be closed, transferred, 
consolidated, or substantially curtailed for failure to meet these 
standards?

    No, a home-living program cannot be closed, transferred to any 
other authority, consolidated, or its programs substantially curtailed 
for failure to meet these standards.


Sec.  36.120  What type of reporting is required to ensure 
accountability?

    The home-living program must provide to the local school board, the 
tribal governing body, OIEP, and the Secretary of the Interior an 
annual accountability report consisting of:
    (a) Enrollment figures for the program;
    (b) A brief description of programs offered;
    (c) A statement of compliance with the requirements of this part; 
and
    (d) Identification of issues and needs.
    2. Part 48 is added to read as follows:

PART 48--SCHOOL CLOSURES

Sec.
48.1 What definitions are used in this subpart?
48.2 Can the Secretary close, consolidate, or substantially curtail 
a Bureau-funded school?
48.3 What must the Secretary do before closing, consolidating, 
curtailing, or transferring a Bureau-funded school, without the 
tribal governing body's approval?
48.4 What requirements must the first notice meet?
48.5 What requirements must the second notice meet?
48.6 How must consultation on school closure be conducted?
48.7 What must the Department's report contain?
48.8 What happens when the Secretary decides to close, consolidate, 
or substantially curtail a Bureau-funded school or dormitory?
48.9 What is the earliest date that the Secretary can implement the 
formal decision?

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115 
Stat. 1425).


Sec.  48.1  What definitions are used in this subpart?

    Active consideration means any action by the Director of OIEP to 
consider the closure, consolidation, transfer of authority or 
substantial curtailment of programs of a school.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau of Indian Affairs.
    Interested parties means the affected tribe, tribal governing body, 
designated local school board, or other affected recognized educational 
organizations.
    Secretary means the Secretary of the Interior or a designee.
    Substantial curtailment means reducing the fundamental structure or 
scope of a school by, for example, eliminating Bureau-funded grades, 
eliminating residential services, or removing core academic services. 
This term does not include eliminating discretionary programs.


Sec.  48.2  Can the Secretary close, consolidate, or substantially 
curtail a Bureau-funded school?

    Yes, the Secretary can close, consolidate, or substantially curtail 
a Bureau-funded school:
    (a) If facility conditions constitute an immediate hazard to health 
and safety pursuant to 25 U.S.C. 1125(e);
    (b) If the tribal governing body or local school board requests the 
closure, consolidation, or substantial curtailment; and

[[Page 41779]]

    (c) If neither paragraphs (a) or (b) of this section apply, by 
following the procedures in Sec.  48.3.


Sec.  48.3  What must the Secretary do before closing, consolidating, 
curtailing, or transferring a Bureau-funded school, without the tribal 
governing body's approval?

    Before closing, consolidating, or substantially curtailing a 
Bureau-funded school, without the approval of the tribal governing 
body, the Secretary and the Director of the Office of Indian Education 
Programs must take the following actions:
    (a) Within 30 days of actively considering closure, consolidation, 
substantial curtailment, or transferring any school to an authority 
other than BIA, the Director must send a notice that meets the 
requirements of Sec.  48.4;
    (b) Within 90 days of sending the letter required by paragraph (a) 
of this section, the Director must mail and publish a second notice as 
required by Sec.  48.5;
    (c) The Director will provide to interested parties a monthly 
status report that includes updates on any items, new developments and 
changes in the timetables, or procedures;
    (d) The Director must allow 90 days following the receipt of the 
notice under paragraph (b) of this section for submission of written 
comments from the tribe, tribal governing body, local school board, 
school administrator, or parents;
    (e) Within 180 days receipt of the notice under paragraph (b) of 
this section, the Director must initiate a consultation process that 
meets the requirements of Sec.  48.6; and
    (f) The Secretary will prepare and distribute a report as required 
by section 1121(d)(5) of the No Child Left Behind Act that meets the 
requirements of Sec.  48.7.


Sec.  48.4  What requirements must the first notice meet?

    The notice required by Sec.  48.3(a) must meet all requirements of 
this section.
    (a) The Director must send the notice to the interested parties;
    (b) The notice required by Sec.  48.3(a) must include all of the 
following:
    (1) The name and address of the school that is under active 
consideration of the proposed action;
    (2) The nature of the action that is under active consideration;
    (3) The reasons for the active consideration of the proposed 
action.
    (4) An outline of future actions that OIEP will take; and
    (5) The name and contact information for an OIEP liaison and a 
request for a designated tribal liaison.


Sec.  48.5  What requirements must the second notice meet?

    The notice required by Sec.  48.3(b) must meet all requirements of 
this section.
    (a) The Director of OIEP must send the notice to:
    (1) The tribe, tribal governing body, local school board, school 
administrator;
    (2) Parents; and
    (3) The appropriate committees of Congress.
    (b) The notice must include the following:
    (1) A statement of the history of the conditions that led to the 
proposed action, including a statement of known attempts to remedy that 
condition;
    (2) Alternatives to the proposed action that have been considered, 
including what happens to students;
    (3) A timetable for conducting the student impact study;
    (4) A description of the process for commenting on the proposed 
action; and
    (5) A timetable and procedures for consultation and regular 
communication.


Sec.  48.6  How must consultation on school closure be conducted?

    The consultation process required by Sec.  48.3(e) must include the 
following:
    (a) At least one public meeting in the attendance area served by 
the school to gather information from the community about the proposed 
action, including alternatives to remedy the conditions that led to the 
proposed action;
    (b) At least one public meeting at which the Director presents 
information to support the proposed action and any alternatives to 
remedy the conditions that led to the proposed action;
    (c) Additional public meetings for discussions with identified 
alternative service provider;
    (d) A meeting in a single location with the tribal governing bodies 
of all tribes served by the school; and
    (e) Additional opportunity to submit written comments.


Sec.  48.7  What must the Department's report contain?

    The report required by Sec.  48.3(f) must meet all requirements of 
this section.
    (a) The Department must submit the report to interested parties and 
the appropriate committees of Congress.
    (b) The report must contain all of the following:
    (1) A study of the impact of the proposed action on the student 
population;
    (2) A description of the affected students with particular 
educational and social needs;
    (3) Recommendations to ensure that alternative services are 
available to such students; and
    (4) A description of the consultation conducted between the 
potential service provider, current provider, tribal representatives 
and the tribes or tribes involved, and the Director of OIEP.


Sec.  48.8  What happens when the Secretary decides to close, 
consolidate, or substantially curtail a Bureau-funded school or 
dormitory?

    If the Secretary makes a formal decision to close, consolidate, or 
substantially curtail a Bureau-funded school or dormitory, the 
Secretary must notify interested parties at least 180 days before the 
end of the school year preceding the proposed closure date. Copies of 
the notice must be submitted to the appropriations committee and be 
published in the Federal Register.


Sec.  48.9  What is the earliest date that the Secretary can implement 
the formal decision?

    The Secretary can close, transfer to another authority, 
consolidate, or substantially curtail a Bureau-funded school or 
dormitory, only after the end of the first full academic year after the 
report required by Sec.  48.3(f) is made.

[FR Doc. 04-15832 Filed 7-8-04; 3:16 pm]
BILLING CODE 4310-6W-P