[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 22178-22222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8256]
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Part II
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 30, et al.
Implementation of the No Child Left Behind Act of 2001; Final Rule
Federal Register / Vol. 70, No. 81 / Thursday, April 28, 2005 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 30, 37, 39, 42, 44, and 47
RIN 1076-AE49
Implementation of the No Child Left Behind Act of 2001
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This final rule addresses six areas involving Indian
education: Defining adequate yearly progress; establishing geographic
attendance areas for Bureau of Indian Affairs-funded schools (Bureau-
funded schools); establishing a formula for the minimum amount
necessary to fund Bureau-funded schools; establishing a system of
uniform direct funding and support for Bureau-operated schools;
providing guidelines to ensure the Constitutional and civil rights of
Indian students; and establishing a method for administering grants to
tribally controlled schools. The rule implements the provisions of the
No Child Left Behind Act of 2001.
DATES: Effective Date: May 31, 2005.
FOR FURTHER INFORMATION CONTACT: Catherine Freels, DOI Office of the
Solicitor, 505 Marquette Avenue NW., Suite 1800, Albuquerque, NM 87102,
phone 505-248-5600.
SUPPLEMENTARY INFORMATION: Contents of the SUPPLEMENTARY INFORMATION
section:
I. Background
II. Public Comments--General
III. Comments on Part 30--Adequate Yearly Progress
IV. Comments on Part 37--Geographic Attendance Boundaries
V. Comments on Part 39--Indian School Equalization Program
VI. Comments on Part 42--Student Rights
VII. Comments on Part 44--Geographic Boundaries
VIII. Comments on Part 47--Uniform Direct Funding and Support for
Bureau-funded Schools
IX. Procedural Matters
I. Background
A. What Information Does This Section Address?
This section addresses:
--Requirements of the Act.
--Overview of Negotiated Rulemaking Process.
--How public comments were handled.
B. What Are the Negotiated Rulemaking Requirements of the No Child Left
Behind Act of 2001?
Under 25 U.S.C. 2018 , the Secretary of the Interior (Secretary)
established the No Child Left Behind Negotiated Rulemaking Committee
(Committee) to develop proposed rules to implement several sections of
the Act relating to the Bureau-funded school system. (In this preamble
and rule we use the term ``the Act'' to refer to the No Child Left
Behind Act, Pub. L. 107-110, enacted January 8, 2002. The No Child Left
Behind Act reauthorizes and amends the Elementary and Secondary
Education Act (ESEA) and amends the Education Amendments of 1978.) The
Act required that the Committee be comprised only of representatives of
tribes served by Bureau-funded schools and the Federal government. It
also 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 requirements of the Act that are the subject of this negotiated
rulemaking process are:
(1) 20 U.S.C. 6316(g): Develop a definition of ``Adequate Yearly
Progress'' for the Bureau-funded school system;
(2) 25 U.S.C. 2004: Attendance boundaries for Bureau-funded
schools;
(3) 25 U.S.C. 2007: A determination of the funds needed to sustain
Bureau-funded schools and a formula to allocate the current funds;
(4) 25 U.S.C. 2010: The direct funding and support of Bureau-funded
schools;
(5) 25 U.S.C. 2016: The rights of students in the Bureau-funded
school system; and
(6) 25 U.S.C. 2501, et seq., the Tribally Controlled Schools Act
(TCSA) of 1988, as amended by the Act: Discharge of the Secretary's
responsibilities under this Act through which tribes and tribal school
boards can operate Bureau-funded schools under the grant mechanism
established in the Tribally Controlled Schools Act.
C. What Was the Negotiated Rulemaking Process?
Under the Act, in August and September, 2002, the Secretary
conducted regional consultation meetings with tribes on the six areas
of the Act to be negotiated. Following consultation and under the Act
and the Negotiated Rulemaking Act (subchapter III of chapter 5, title
5, United States Code), in November, 2002, the Secretary published a
Notice of Intent To Form a Negotiated Rulemaking Committee (67 FR
75828, December 10, 2002) and requested nominations for tribal
representatives for the Committee.
The Secretary reviewed tribal nominations for tribal
representatives and announced selection of 19 tribal representatives
and 6 Federal representatives from the Department of the Interior (68
FR 23631, May 5, 2003). Tribal membership on the Committee represented,
to the maximum extent possible, the proportionate share of students
from tribes served by Bureau-funded schools. The Secretary chartered
the No Child Left Behind Negotiated Rulemaking Committee under the
Federal Advisory Committee Act (5 U.S.C. Appendix) on May 1, 2003.
The Committee held its first meeting in June, 2003. It agreed on
protocols to govern the meetings and selected three tribal
representatives and two Federal representatives as co-chairs. A third
party neutral approved by the Committee served as lead facilitator for
all Committee meetings. The Committee met five times, from June 2003,
through October 2003, to develop recommendations for six proposed
rules. The Committee divided the areas subject to regulation among four
work groups: funding and funding distribution; student rights and
geographic boundaries; administration of grants; and adequate yearly
progress. These work groups prepared written products for review,
revision, and approval by the full Committee.
The Committee operated by consensus and recommendations for
proposed rules were consensus decisions. All Committee and work group
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. Federal Register notices stating the location
and dates of the meetings and inviting members of the public to attend
were published prior to each meeting. In addition, Committee
information including meeting locations and dates and meeting agendas
and summaries were provided on the Office of Indian Education Program
Web site at: http://www.oiep.bia.edu.
The Department published a proposed rule in the Federal Register on
February 25, 2004 (69 FR 8752), with a 120-day comment period. (The
Department subsequently reopened the comment period for an additional
10 days.) In August 2004, following the public comment period, the
Committee reconvened to review public comments and make recommendations
for final rules to the Secretary.
D. How Were Public Comments Handled?
The Notice of Proposed Rulemaking for parts 30, 37, 39, 42, 44, and
47, published February 25, 2004, provided
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for a 120-day public comment period. We also reopened the public
comment period for an additional 10 days at the end of the 120-day
public comment period. We received 47 comments from individuals, tribal
leaders, schools, education associations, school boards, and the U.S.
Department of Education. Because the proposed rules were the result of
negotiated rulemaking, the Committee reconvened to review public
comments at the end of the public comment period.
The Committee was provided the full text of each comment and
summaries of each comment for review. The Committee operated by
consensus in reviewing comments to determine whether to accept a
comment and make suggested changes to a rule, accept a comment and
modify suggested changes, or acknowledge a comment and make no changes.
Comments were handled as follows.
--Where comments referred to issues that are beyond the scope of this
rule, such as inadequate funding or disproportionate allocations, or to
issues that were not relevant to this rule, such as tribal recognition
or comments on the Paperwork Reduction Act requirements (the comment
period ended on PRA items in March, 2004), the Committee acknowledged
the comments, but took no action on them.
--Where comments agreed with the proposed rules, the Committee
acknowledged the comments.
--Where comments disagreed with the proposed rules, the Committee
acknowledged the comments. The disposition of these comments and the
reasons that they were accepted or not accepted are treated in the
detailed discussions that follow.
--Where the Committee did not have consensus to reopen a particular
section to consider comments suggesting changes, the Department
reviewed the comments and made changes where it deemed necessary. These
changes are noted in the response to comments section for each part.
Following receipt of the Committee's recommendations for the final
rules, the Secretary reviewed the public comments and made changes as
noted for each part. Changes that are purely grammatical are not
discussed. Public comments and responses are noted below under the
applicable part.
E. How Were Oversights in the Proposed Rule Corrected?
When the proposed rule was published, there was an oversight in the
wording of the amendatory language for part 39. Rather than stating
that the entire subpart was proposed for revision, the amendatory
language should have stated that only subparts A through H were
proposed for revision. Our intention, and that of the negotiated
rulemaking Committee, was to leave subparts I through L in place with
no revisions. This final rule corrects that oversight.
F. How Were Conforming Amendments to Parts 31 and 36 Handled?
Additional changes are required in order to eliminate conflicts
between the amendments in these regulations and existing regulations in
other parts of 25 CFR. In a rule published elsewhere in today's Federal
Register and identified by the RIN 1076-AE54, the Department is
deleting provisions in parts 31 and 36 of 25 CFR that conflict with the
amendments published in this rule.
II. Public Comments--General
We received the following general comments referring to all parts:
Comment: The proposed rules may go against tribal culture and
affect tribal sovereignty and do not ensure fair and equal treatment
for tribes.
Response: We noted the comment and did not make any changes to the
rules based on these comments. Congress mandated that we promulgate
rules relating to certain sections of the Act.
Comment: Other provisions of the Act should be included in this
rulemaking.
Response: We noted the comment and did not make any changes based
on this comment. The comment is beyond the scope of these rules. The
Secretary determined which sections of the Act to include in this
negotiated rulemaking.
Comment: The Act provides no additional funding for education.
Funding is insufficient. Redistribute funding to improve the
concentration where it is needed.
Response: We noted the comment and did not make any changes based
on this comment. The comment is beyond the scope of these rules.
III. Comments on Part 30--Adequate Yearly Progress
For purposes of adequate yearly progress (AYP), the Bureau of
Indian Affairs is considered the State Educational Agency (SEA) for the
Bureau-funded school system.
20 U.S.C. 6311(b) requires each State to submit a plan to the
Secretary of Education which demonstrates that the State, through its
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.
The Act requires each SEA to define the AYP that schools and local
educational agencies (LEAs) must attain toward the goal of all students
reaching the proficient level on reading/language arts and mathematics
assessments by school year 2013-2014. Each State's AYP definition must
include a starting point and intermediate goals for student improvement
in reading/language arts and mathematics; if a school or LEA does not
meet the intermediate goals for two consecutive years or more, it is
identified as in need of improvement and must implement an improvement
plan and take certain other actions under the Act.
The Act 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 of the
academic assessments; and
--Includes separate measurable annual goals for continuous and
substantial improvement in the academic achievement of all students in
the school; economically disadvantaged students; students from major
racial and ethnic groups; students with disabilities; and 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 academic indicator applicable to
elementary and middle schools. 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.
A detailed procedure for submission of an alternative AYP
definition by a tribe or school board, and for review/
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approval of that definition by the Secretary of the Interior is
included in Sec. Sec. 30.106--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 consequences of failing to make AYP are described in Sec.
30.117. While the remedial statuses of ``school improvement,''
``corrective action,'' and ``restructuring'' applicable to public
schools are also applicable 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.
Only major, substantive public comments are discussed below. In
some instances, we have combined several similar or identical comments
and replied to them in one response. Grammatical changes, minor wording
revisions, and other purely style-oriented comments are not discussed;
however, changes to the final rule reflect such public comment. The
Secretary reviewed the final rule and made the changes as noted below.
A. Comments the Committee Considered That Resulted in No Change to the
Rule
Comment: There were several comments supporting the proposed
definition of adequate yearly progress for Bureau-funded schools. These
comments included:
--Agreement with the proposed definition of adequate yearly progress
being that of the State in which a Bureau-funded school is located;
--Agreement with allowance for a tribe's submission of its own set of
alternatives; and
--Agreement with the language describing the Secretary's trust
responsibility, the sovereign rights of Indian Tribes, and the State's
lack of jurisdiction over Bureau-funded schools.
Response: These comments were considered, appreciated, and, because
they were in agreement with the rule, no action was taken.
Comment: Several commenters suggested that:
--The regulations should require that a school's alternative definition
of adequate yearly progress (AYP) ``identify'' what is from the State's
definition and what is not; and
--The Department of the Interior should establish a system of rewards
and sanctions.
Response: These comments were considered and no action was taken
because the Committee had already considered this in drafting the
proposed rule.
Comment: Change Sec. 30.119(b), to make it more specific and state
that:
--The school board has the sole authority and responsibility for
determining the nature and implementation of remedial actions in
accordance with the Act; and
--In implementing any remedial actions the Board is not subject to an
approval process from the Bureau, but may request and receive technical
assistance concerning remedial actions.
Response: The comment was considered and no action was taken. The
Committee determined that the suggested change is unnecessary as
section 20 U.S.C. 6316(g)(4) is clear.
Comment: There are several references in the rule to various parts
of section 1116 of the Act, so section 1116 should be included in the
rule.
Response: This comment was considered and no action was taken
because the Committee believed that this would not improve the rule.
Comment: Language should be added to Sec. 30.122 to say that
providing funding and technical assistance to schools that fail to make
AYP is not just a responsibility, but a priority to the Bureau.
Response: This comment was considered and no action was taken.
Comment: Section 30.126 should be modified to match section 1116(g)
and to:
--More clearly state that the Bureau collects information from grant
and school boards to enable its reporting requirement, but that the
Bureau does not make the determination of school improvement,
corrective action or restructuring status for Bureau-funded grant and
contract schools; and
--Include language implementing section 1116(g) for tribally controlled
school boards to identify the factors that led to any determination of
remedial actions for the school and for those factors to be reported to
the Department of Education.
Response: This comment was considered and no action was taken
because the Committee felt the statutory language was clear.
Comment: Rewards and sanctions should be the responsibility of the
Bureau.
Response: This comment was considered and no action was taken.
B. Comments the Committee Considered That Resulted in Changes to the
Rule
Comment: Delete the reference to ``curriculum'' since adoption of
the definition of AYP used by the State in which the school is located
would not mean a school needs to use the State curriculum. Instead add
the phrase ``academic content and student achievement'' before
``standards.''
Response: This change was made and is reflected in Sec. 30.104(a).
Comment: Delete the reference to ``curriculum'' and add ``solely
for the purpose of using the State's academic contents and student
performance standards, assessments, and definition of AYP.''
Response: This change was made and is reflected in Sec.
30.104(a)(2).
Comment: Insert the term ``trust'' before responsibility for Indian
education.
Response: This change was made and is reflected in Sec.
30.104(a)(3).
Comment: Insert that the proposal must meet the requirement of
section 1111(b) of the Act and 34 CFR 200.13-200.20, taking into
account the unique circumstances and needs of the school or schools and
students served.
Response: This change was made in part. The term ``to be consistent
with section'' was removed and, ``must meet the requirements of 20
U.S.C. 6311(b), taking into account the unique circumstances and needs
of the school or schools and the students served'' was added, as
reflected in Sec. 30.106.
Comment: The reference to the ``State's definition'' of AYP is in
error. It should be a reference to the Bureau's definition of AYP.
Response: The word ``State's'' was changed to ``Secretary's'' as
reflected in Sec. 30.108.
Comment: The language should be changed to say ``By the 2005-2006
school year, a Bureau-funded school must measure the achievement of all
students enrolled in grades three through eight, and once for all
students enrolled in grades 10-12. Until that time, the Bureau-funded
schools must measure the achievement of all students
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at least once during grades three through five, six through nine and
10-12.''
Response: Revised Sec. 30.114 states an assessment is required for
all students in grades three through eight and at least once for all
students in grades ten through twelve.
Comment: The rule must be revised to clarify that a school fails to
meet AYP if it is deficient in any of the measurements in Sec.
30.107(b)(6)(i) or (ii) as recommended in an earlier comment.
Response: The change was made and is reflected in Sec. 30.116.
C. Comments the Committee Considered That Resulted in No Consensus With
No Change to Rule
Comment: There were several comments suggesting the Department of
the Interior, Office of Indian Education Programs should develop its
own definition of AYP based on Bureau-wide standards and assessments.
Response: The Committee consensus was to define the Secretary of
the Interior's definition of AYP as each State's definition of AYP,
since the Department lacks an independent set of standards and
assessments necessary to establish a definition of AYP. Although the
Committee received very few comments on this decision, some Committee
members commented on this issue. When the comments were being reviewed,
some of the tribal members of the Committee decided to withhold
consensus on keeping the proposed definition of AYP. Since the
Committee failed to reach consensus in recommending a final AYP rule,
it is left for the Secretary to determine the rule.
The Secretary has decided to keep the definition of AYP as
published in the Notice of Proposed Rulemaking published on February
25, 2004 with certain clarifying changes as described in the preceding
section. Since the Department did not receive comments that had not
already been considered when the Committee made the difficult choice to
recommend the definition found in the NPRM, the Secretary decided to
adopt the NPRM's definition. Thus, the definition of AYP remains that
of the State in which a school is located until the school has received
a waiver of that definition from the Secretary of the Interior.
The AYP workgroup of the negotiated rulemaking Committee 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
aggregating Bureau-funded school assessment data to make AYP
determinations is not statistically reliable because each school uses a
different assessment system and because, collectively, the assessments
in use do not meet the requirements of the Act in 20 U.S.C.
6311(b)(3)(C)(ii). Therefore, the Committee needed to develop a uniform
assessment system. As the Committee discovered, Bureau 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,
academic content and student achievement standards and assessments; or
--Allowing each Bureau-funded school to follow the definition of the
State in which it is located.
After Congress passed the Goals 2000 Act (Pub. L. 103-227), 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 curricula, academic content and student achievement 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.
In light of this history, the Committee revised its initial plan
and decided to adopt as the Secretary's definition of AYP the
definition of the State in which a school is located. However, a tribal
governing body or school board may develop an alternative AYP
definition and submit it to the Secretary for approval. This decision
implements 20 U.S.C. 6316(g) of the Act, which expressly permits a
tribe or school board to waive the Bureau's AYP definition and develop
its own, subject to the Secretary's approval in consultation with the
Secretary of Education.
During our initial negotiations, Tribal representatives on the
Committee expressed serious objection to adopting State AYP definitions
as the Secretary'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.
D. Comments the Committee Considered That Resulted in No Consensus With
Changes to the Rule
The Committee also had no consensus regarding comments made by the
Department of Education on the proposed definition of AYP. The
Department of Education did not provide these comments during the
original public comment period.
Since the Department of Education is a Federal agency, the
Department of the Interior believed that it could nevertheless consider
Education's comments. However, to ensure fairness to any member of the
public who had not yet provided comment, the Department of the Interior
formally reopened the public comment period for receipt of comments
from Education and any member of the public. During review of the
comments, the Federal Committee members believed that some of
Education's comments should be accepted and the proposed changes be
made to the rule. Some tribal Committee members objected that the
Federal Committee members would not negotiate whether to consider
Education's comments. Therefore, the Committee could not reach
consensus on whether to accept Education's comments. Since there was no
Committee recommendation, the Secretary in adopting the final rule has
accepted certain Department of Education comments.
[[Page 22182]]
Comment: The rule should clarify in Sec. Sec. 30.104 and 30.105
that any Bureau-funded school that uses the Bureau's definition of AYP
must also use the academic, content, and student achievement standards
and State assessments of the State in which the school is located.
Standards and assessments are a necessary part of an accountability
system.
Response: The Committee could not reach consensus to change the
proposed rule based on this comment from the Department of Education.
Since there was no consensus Committee recommendation, the Secretary
accepted the Department of Education's comment and changed the rule to
read: ``Yes. A tribal governing body or school board may waive all or
part of the Secretary's definition of academic content and student
achievement standards and assessments and AYP. However, until the
alternative definition is approved under Sec. 30.113 the school must
use the Secretary's definition of academic content and student
achievement standards, assessments, and AYP.''
Comment: The rule should revise Sec. 30.107 to:
--Use the same language as section 1111(b) of the Act to take into
account the unique circumstances and needs of the school or schools and
the students served;
--Add a citation to 34 CFR 200.13-20; and
--State that a waiver request will include an explanation of what
standards and assessments will be used, as required by section 1111(b).
Response: Since there was no consensus Committee recommendation on
whether to accept this comment from the Department of Education, the
Secretary accepted the comment and made the following changes:
--Changed the term ``curriculum'' as recommended in several comments;
--Removed science from the areas that require a measurement of progress
as recommended in several comments; and
--Added ``academic contents and achievement standards'' as recommended
throughout the document.
The Secretary also added the Department of Education's language
suggestions to the Department's final rule in Sec. 30.107 to read:
Sec. 30.107 What must a tribal governing body or school board include
in its alternative definition of AYP?
(a) An alternative definition of AYP must meet the requirements
of 20 U.S.C. 6311(b)(2) and 34 CFR 200.13-200.20, taking into
account the unique circumstances and needs of the school or schools
and the students served.
(b) In accordance with 20 U.S.C. 6311(b) and 34 CFR 200.13-
200.20, an 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 and reading or language arts;
(5) Measure progress separately for reading or language arts and
for mathematics;
(6) Unless disaggregation of data cannot yield statistically
reliable information or reveals personally identifiable information,
apply the same annual measurable objectives to each of the
following:
(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;
(7) Establish a starting point;
(8) Create a timeline to ensure that all students are proficient
by the 2013-2014 school year;
(9) Establish annual measurable objectives;
(10) Establish intermediate goals;
(11) Include at least one other academic indicator which, for
any school with a 12th grade, must be graduation rate; and
(12) Ensure that at least 95 percent of the students enrolled in
each group under Sec. 30.107(b)(6) are assessed.
(c) If a Bureau-funded school's alternative definition of AYP
does not use a State's academic content and student achievement
standards and academic assessments, the school must include with its
alternative definition the academic standards and assessment it
proposes to use. These standards and assessments must meet the
requirements in 20 U.S.C. 6311(b) and 34 CFR 200.1-200.9.
(d) 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).
Comment: There is substantial concern about a regulation that
requires the Secretary and the Secretary of the Department of
Education, regardless of the complexity of a particular waiver request,
to approve or disapprove all alternative definitions of AYP within 90
days of receiving a completed alternative definition. The suggestion
was made to include an exception for unusual circumstances that may
require additional time. A notification provision should also be added
to inform a school that seeks a waiver what additional time will be
needed.
Response: Section 30.113(d) now states that the Secretaries will,
``review the proposed definition to determine whether it is consistent
with the requirements of 20 U.S.C. 6311(b) of the Act.'' It does not
specify a time within which the Secretaries will act. While the
Secretaries will handle each situation expeditiously, the revised
wording of the regulation allows flexibility in processing individual
cases and ensures that extra time can be taken where necessary.
Comment: Merely providing the Department of Education with
notification of the Department of the Interior's receipt of a completed
proposed alternative definition of AYP is insufficient. The last phrase
in the Elementary and Secondary Education Act (ESEA) section
1111(g)(1)(B) provides for the Department of Education's Secretary to
have the information needed to determine whether a request of an
alternative AYP definition should take into account the unique
circumstances and needs of school or schools and the students served.
This statutory sentence makes no sense if interpreted to mean that the
Secretary of Education may only disapprove an alternative definition
that the Secretary chooses to make the subject of a consultation with
the Department of Education--which is all that Sec. 30.113 would
require. The Act surely did not mean to create opportunities for
inconsistencies in the Federal government's overall approach to
approving alternative AYP definitions. Nor should the Executive Branch
do so as a matter of interpretative choice.
The words of the statute in 1116(g) state that the Secretary of the
Interior, ``in consultation with the Secretary if the Secretary of the
Interior requests the consultation, shall approve such alternative
definition unless the Secretary determines that the definition does not
meet the requirements of section 1111(b), that takes into account the
unique circumstances and needs of such school or schools and the
students served.'' While this language is admittedly cumbersome, three
fundamental principles compel the approach we strongly request DOI to
take:
--The Secretary of the Department of Education expresses statutory
responsibility for determining that, as a part of consultation with
DOI, alternative definitions do not meet the statutory requirements (in
keeping with the Department of Education's overall title I, part A
statutory responsibility to administer the title I, part A requirements
governing systems of accountability);
[[Page 22183]]
--The Executive Branch's need to avoid inconsistencies in application
of section 1111(g)(1)(B); and
--Take into account Interior's and Education's differing expertise in
assessing whether an alternative AYP definition meets the requirements
of ESEA section 1111(b) and applicable regulations, taking into account
the unique circumstances and needs of the school or schools and the
students served.
Response: The Committee could not reach consensus to change the
rule based on this comment. The Notice of Proposed Rulemaking provided
that the Secretary of the Interior made the final determination on
whether to grant an AYP waiver. The Committee believed that the statute
could be read to mean that the Secretary of the Interior has the final
decision-making power. During the public comment period, the Federal
team members engaged in discussion within the Department of the
Interior and with the Department of Education. The Departments tried to
find a compromise that would provide for consistency in Federal
decision-making and ensure that the Departments work together, using
their collective expertise, to make a decision regarding whether an
alternate definition of AYP meets the requirements of statute and
regulations. The result of the discussion was the Department of
Education's comment that the decision on the waiver should be a joint
decision by the Secretary of the Interior and the Secretary of
Education.
When the Committee convened to review the comments, tribal members
expressed concerns that the Federal members engaged in this dialogue
with the Department of Education and that the Federal team was prepared
to withhold consensus for any other result. Consequently, the Committee
could not reach consensus on whether to consider the Department of
Education's comments. Thus, the final rule has adopted certain
Department of Education comments and revised Sec. 30.113(d) through
(h) to read:
(d) The Secretaries review the proposed alternative definition
of AYP to determine whether it is consistent with the requirements
of 20 U.S.C. 6311(b). This review must take into account the unique
circumstances and needs of the schools and students.
(e) The Secretaries shall approve the alternative definition of
AYP if it is consistent with the requirements of 20 U.S.C. 6311(b),
taking into consideration the unique circumstances and needs of
schools and students.
(f) If the Secretaries approve the alternative definition of
AYP:
(1) The Secretary 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.
(g) The Secretaries will disapprove the alternative definition
of AYP if it is not consistent with the requirements of 20 U.S.C.
6311(b). If the alternative definition is disapproved, the tribal
governing body or school board will be notified of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not
meet the requirements of 20 U.S.C. 6311(b).
(h) If the Secretaries deny a proposed definition under
paragraph (g) of this section, they shall provide technical
assistance to overcome the basis for the denial.
Comment: The proposed rule needs to be revised to more closely
reflect the ED-DOI agreement in 20 U.S.C. 7824.
Response: The Committee did not reach consensus to change the
proposed rule based on this comment from the Department of Education.
Since the Committee provided no recommendation on this comment, the
Secretary has decided to delete this section of the rule, as it is
specifically provided for in the Act.
IV. Comments on Part 37--Geographic Attendance Boundaries
The Act requires designated separate geographic boundaries for all
Bureau-funded schools and provides for tribes to have input into the
process. This part provides guidance and clarifies what roles tribes
have in establishing and revising geographic attendance boundaries for
schools. It also clarifies some of the limitations on the Secretary's
ability to change school boundaries. It recognizes distinctions for
different boundary determinations for day schools, on-reservation
boarding schools, and peripheral dorms and for off-reservation boarding
schools. The rule provides guidance applicable to both types of
schools, where appropriate (subpart A) and provides separate guidance
for each type of school, where appropriate (day schools, on-reservation
boarding schools, and peripheral dorms--subpart B and off-reservation
boarding schools B subpart C). This part is intended to give tribes the
opportunity to meaningfully participate in all decisions regarding
attendance boundaries and related policies where not statutorily
prohibited.
General Comments Requesting No Change
Several commenters approve of provisions of the rule that allow
tribal entities to work collaboratively with Bureau-funded schools when
geographic boundaries are determined or revised and that provide for
assistance from the Department if tribes need assistance. Several
commenters agree with the rule provision that tribes have ongoing
authority to suggest changes to and participate in the revision of
geographic attendance boundaries for schools. Some comments support the
flexibility for allowing students to attend schools outside their
geographic attendance boundaries. One commenter noted that rights in
the rule are rights recognized pursuant to reserved tribal authority
stemming from treaties between the United States and tribes. Some
commenters to this part in the NPRM preamble disagree with allowing
parental choice (which was not included in the final rule). One
commenter stated that the Bureau can and must withhold payment from a
school when a student who does not live within the school geographic
attendance boundary has not received a waiver in accordance with tribal
law.
Comment: Funding should not be withheld solely because a student is
attending a school outside his or her attendance area.
Response: No change was made because a student is funded at the
school they are attending.
Comment: Revise Sec. 37.110 to state that a change of school is
the decision of the parents and/or the student.
Response: No change was made because the Act requires the Secretary
to promulgate regulations for school boundaries.
Comment: Revise the term ``geographic attendance area'' in Sec.
37.101 to clarify that it may include off-reservation areas,
particularly off-reservation boarding schools.
Response: No change was made because the rule states that
geographic attendance areas include off-reservation boarding schools.
Comment: If parental choice is included in the rule, geographic
boundaries have no meaning.
Response: No change was made because parental choice is not
included in the rule.
Comment: Revise Sec. 37.111 to state that tribes have input on
authorizing transportation funds for students attending schools outside
their geographic attendance boundaries.
Response: The Committee acknowledged this comment, considered it,
and made no change.
Comment: Revise Sec. 37.111 to reflect that a Bureau-funded school
may enroll eligible Indian students who are not members of the tribe.
Response: We revised Sec. 37.111(b) and added paragraph (c) to
clarify that a
[[Page 22184]]
Bureau-funded school may enroll eligible Indian students who are not
members of the tribe. The section authorizes ISEP-eligible students
residing within the tribe's jurisdiction to receive transportation
funding to attend schools outside the geographic attendance area in
which the student lives. The section also authorizes tribal member
students who are ISEP-eligible and not residing within the tribe's
jurisdiction to receive transportation funding to attend schools
outside the geographic attendance area in accordance with a tribal
resolution issued by the tribe in which the student is enrolled.
Comment: Revise Sec. 37.122 to include a deadline for the
Secretary to accept or reject a proposed geographic boundary change; a
time period for publishing the Federal Register notice of an accepted
change; and a time frame for informing a tribe why a suggested boundary
change is not accepted.
Response: The Committee acknowledged this comment, considered it,
and made no change.
Comment: Revise Sec. 37.131 to clarify that all off-reservation
boarding schools will have separate, non-overlapping boundaries, or, if
parental choice is applied, delete this section as unnecessary.
Response: No change was made because the rule does not need
clarification and the section is necessary to the rule.
V. Comments on Part 39--The Indian School Equalization Program
A. General Comments on the Indian School Equalization Program
Comment: Several comments stated that data for actual
transportation costs incurred by Bureau-funded schools should:
--Take into account costs of gas and additional wear and tear that
vehicles incur in isolated, remote locations; and
--Reflect two school years' worth of transportation information.
The commenters also felt that, after collecting this data:
--The Committee should reconvene to review the data and develop a
proposed regulation; and
--The Secretary should then publish a proposed rule for notice and
comment before a final recommendation is made.
Response: The Committee acknowledged and considered this comment,
however no change was made to the funding formula. The Committee agrees
that it needs more information to develop an improved transportation
funding formula. It therefore recommended to the Secretary that another
negotiated rulemaking Committee convene after the Department and the
Bureau-funded schools have gathered additional transportation
information in order to develop a more accurate and fair transportation
funding regulation.
Comment: In the preamble, the Committee had asked for comments on
the determination of an isolation factor. Several commenters
acknowledged the effects of severe isolation that results in expenses
above and beyond the norm. Some commenters felt that all schools were
isolated and should qualify for an isolation adjustment and others
suggested that even schools that have paved highways should be
considered, as the areas surrounding some Bureau schools are
underdeveloped.
Response: The Committee acknowledged and considered these comments;
however, there was no change made to the rule, as the comments did not
give any specific indicators or suggestions on how to determine
isolation factors.
Comment: Also in the preamble, the Committee had asked if the
funding formula should be left in the body of the rule or if it should
be placed in the appendix. Commenters responded that the formula should
be in the body of the rule.
Response: The Committee recommends that the ``minimum amount of
funding to sustain each Bureau-funded school formula'' be placed in the
body of the rule and not in the appendix.
Comment: The proposed rules may in practice contravene the culture
of the Micoosukee Tribe and impinge on Tribal sovereignty. Due to the
unique cultural aspects of Indian Tribes, the standards applied to non-
Indians cannot be applied to Indians. The result would be to infringe
on tribal culture, violate laws designed to protect tribes, and take
away the right of tribes to live according to their customs and
beliefs. The proposed rules do not ensure fair and equal treatment for
tribes.
Response: The comment was acknowledged and considered. No action
was taken because the Committee's charge was to develop regulations to
implement the Act and, therefore, the Committee had no authority to
address this comment.
Comments: Several commenters discussed the need for additional
funding. One commenter did not support using general funds to
redistribute in the base program categories arguing that the proposed
items could pose a huge financial impact on schools. Several commenters
suggested more funding is required for general education of students.
Another comment was that the Act will provide no additional funding but
merely reallocate current funding.
Several commenters shared the concern that current Bureau funding
is insufficient in many areas, and that merely revising the
distribution method is inadequate. What should have happened was a
redistribution to concentrate funding where it is needed combined with
additional funding to support the Act's mandates.
Another commenter suggested providing recurring funding to support
educational services to pre-K students. One Commenter suggested that
special circumstances, such as the therapeutic dormitory pilot project,
should be included in the ISEP base. These comments also included a
comment that another funding mechanism is needed to fund non-ISEP
eligible students for distance and alternative learning and expressed
disappointment that the funding formula did not take into account
greater lengths of service of employees. Schools incur increased costs
with employees who have greater lengths of service. Several commenters
also were disappointed that the formula does not provide funding for
after school programs.
Response: These comments were acknowledged and considered and no
action was taken because the Committee's charge was to develop
regulations to implement the Act but it was not authorized to make
funding recommendations.
Comment: Several commenters discussed Off-Reservation Boarding
Schools (ORBS) and suggested that ORBS should not receive an additional
weighted unit in the funding formula. Others felt that ORBS should
receive an additional weighted unit in the funding formula because
their needs are unique as some of their students have legal and
behavioral problems.
Response: The Committee acknowledged and considered this comment;
however, no change was made to the funding formula because the
commenters did not present any additional arguments that had not
already been considered by the Committee in drafting the proposed
rules.
Comment: Several commenters recommended that the funding formula be
revised to provide a supplemental weight for students with disabilities
because the mandatory 15 percent set aside may cause economic hardship
on
[[Page 22185]]
a school and the part B process is cumbersome.
Response: The Committee did not have consensus to open this issue
for discussion. The current regulations and the proposed regulations
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 Federal team decided that additional information is needed to
determine if modifications are necessary to the 15 percent set-aside.
The Committee recommends that additional information be gathered
regarding the number of ISEP eligible students who are identified as
disabled and who are receiving special education services, and other
related information. If the information collected reveals that the 15
percent set-aside does not accurately reflect the percentage of ISEP
eligible students with disabilities in the Bureau-funded school system,
then the Committee recommends that a negotiated rulemaking committee
negotiate revised special education funding regulations.
Comment: The proposed rules will allow school districts to use
Federal funds in a manner more consistent with their own reform
strategies and priorities. It is important to note that these rules
allow flexibility in adopting assessment systems composed entirely of
locally developed and administered tests.
Response: The comment was acknowledged and considered and no action
was taken since no change was necessary based on this comment.
B. Section-Specific Comments
Section 39.2 What are the Definitions of Terms Used in This Part?
Comment: There is no need for a definition of ISEP student count
week.
Response: The Committee acknowledged and considered this comment
and made this change.
Comment: The definition of school bus includes a definition of the
operator, including the requirement that the driver be State qualified.
Response: The Committee acknowledged and considered this comment
and changed the definition of school bus to include ``. . . operated by
an operator in the employ of, or under contract to, a Bureau-funded
school, who is qualified to operate such a vehicle under Tribal, State,
or Federal regulations governing the transportation of students.''
Comment: Why does the definition of tribally operated contract
school include grant schools?
Response: The Committee acknowledged and considered this comment
and changed the definition to read `` Tribally operated school means an
elementary school, secondary school, or dormitory that receives
financial assistance for its operations 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 (25 U.S.C. 450
et seq.), or under the Tribally Controlled Schools Act of 1988.''
Comment: Bureau-funded school and Bureau school should be defined.
Response: The Committee acknowledged and considered this comment
and added a definition of Bureau-funded school and Bureau school.
Comment: Is the definition of ISEP count week still needed in view
of the proposal to convert a 3-year rolling average for identifying the
student count? The count period used for residential students is not
the last full week in September. As only the transportation mileage
count would be taken the last full week of September, the term could be
changed to ``transportation mileage count week.''
Response: The Committee acknowledged and considered this comment
and took out the definition of ISEP count week, but kept the definition
as part of the definition of transportation.
Comment: The following corrections are needed in the definition of
``Limited English Proficient'': ``(1) * * * means a child from a
language background other than English who needs language assistance in
his/her language or in English in school,'' (2) ``the child comes from
an environment [where a language] other than English is dominant.''
Response: The Committee acknowledged and considered this comment
and adopted the suggested language changes to the definition of
``Limited English Proficient.''
Comment: The terms ``Bureau-operated or -funded schools'' used here
is redundant. The term should be ``Bureau-funded,'' and that term
should be defined, as suggested above.
Response: The Committee acknowledged and considered this comment
and took out the term ``Bureau-operated'' because it was redundant.
Comment: The opening sentence of the definition for Special
Education does not seem broad enough to cover the numbered items
listed. Some special education students, especially those who are
physically handicapped, require personal aides and other such
accommodations that are customarily provided through special education
programs and paid for with special education funds. Consider using the
definition of ``special education'' in the IDEA regulations at 34 CFR
300.26.
Response: The Committee acknowledged and considered this comment
and adopted the definition of ``special education'' in the IDEA
regulations at 34 CFR 300.26.
Comment: The definition of ``supervisor'' requires clarity. Perhaps
in a Bureau-operated school the individual in the position of ultimate
authority is called ``superintendent,'' but that is not the term used
in all contract and grant schools. Furthermore, the ``ultimate
authority'' in a contract or grant school is the school board. The
purpose of this term should be determined and the definition clarified
accordingly.
Response: The Committee acknowledged and considered this comment
and the term ``supervisor'' was removed as a definition.
Comment: The definition of ``transported student'' does not match
the term. A ``transported student'' is not ``the average number of
students.'' Either the term should be revised or the definition should
be revised.
Response: The Committee acknowledged and considered this comment
and removed the definition of ``transported student.''
Comment: The definition of ``three year rolling average'' should
expressly state that all supplemental weights should be included in the
average. That is, the 3-year average should actually be an average of
WSU count.
Response: The Committee acknowledged and considered this comment
and changed the definition to add the current year of operation in
academic programs and residential programs.
Comments: There were several comments on this section that did not
result in a change to the rule. They include comments that:
(1) The definition of ``agency'' should be changed so it reflects
what an agency does because it does not always provide services to
governing bodies;
(2) The definition of ``agency school board'' is not necessary
because they have no duties or responsibilities under ISEP;
(3) The definitions need to clarify whether a school counts non-
ISEP students for ADM;
(4) The definition of ``Individual Supplemental Services'' should
include SPED since schools are required to spend ISEP funds for SPED
services and
[[Page 22186]]
since SPED is a non-base academic service;
(5) The ``Limited English Proficiency'' definition is too lengthy
and should consist only of paragraph (3) because ISEP only deals with
American Indians;
(6) The definition of ``eligible Indian student'' should be revised
to establish an upper age limit for eligibility for ISEF funding;
(7) The ``homebound'' definition should require enrollment in a
Bureau school, since a homebound student can qualify for ISEF and ADM
count if he/she received the minimum level of contact hours; Suggested
definition: ``Homebound'' means a student who is enrolled in a Bureau-
funded school and is educated outside the classroom''; and
(8) The definition of ``Local School Board'' does not track the
definition of that term in the Act and should read: ``Local School
Board,'' when used with respect to a Bureau school, means a body chosen
in accordance with the laws of the tribe.''
Response: These comments were acknowledged and considered by the
Committee, but the Committee determined that the comments did not raise
concerns that the Committee had not already considered in the proposed
rule and therefore no action was taken.
Section 39.102 What Is Academic Base Funding?
Comment: The term ``base funding'' should be clarified to
distinguish between ``academic base funding'' and ``residential base
funding.''
Response: The Committee acknowledged and considered this comment,
and made this change throughout the funding section.
Comment: The question should be revised to state, ``What is
included in base academic funding?''
Response: The Committee acknowledged and considered this comment,
and changed the question to read, ``What is academic base funding?''
Comment: The answer to Sec. 102(a) in the proposed rule is
incorrect because it states that base funding includes all available
funding for educational services.
Response: The Committee acknowledged and considered this comment,
and changed the answer to more accurately reflect that base funding is
the average daily membership times the weighted student unit.
Section 39.103 What Are the Factors Used To Determine Base Funding?
Comment: The answer is inaccurate, as it states, ``base funding
factors'' when really it is the weighted unit factor for base academic
and base residential funding.
Response: The Committee acknowledged and considered this comment,
and changed the chart (contained in the answer) to more accurately
illustrate what the base academic and base residential funding is for
the appropriate grade levels.
Comment: In the question the words ``use'' and ``must'' are
transposed.
Response: The Committee acknowledged and considered this comment,
and modified the sentence so that these two words are transposed into
their correct positions.
Section 39.104 How Must a School's Base Funding Provide for Students
With Disabilities?
Comment: Is it necessary for a school to comply with the
Individuals with Disabilities Act (IDEA) if the school does not have
enough students to qualify for part B funding?
Response: The Committee did not reach consensus to discuss this
issue as it is clear that any student identified as disabled must be
provided special education services under IDEA.
Comment: This section needs to be revised to select one term to
refer to the students being described and use it consistently.
Response: The Committee acknowledged and considered this comment,
and modified the rule to read ``students with disabilities'' throughout
the document.
Comment: This section contains several inaccuracies and needs
revision. Specifically, the term ``academic base funding'' should be
used in place of ``ISEP funds.'' What is meant by ``all components'' of
IDEA?. Also, paragraph (b) should address only the circumstances under
which a school may use some or all of the 15 percent reserved in
paragraph (a)(1) for a schoolwide program.
Response: The Committee acknowledged and considered this comment
and modified the paragraph to refer to ``academic base funding''
instead of ``ISEP funds.'' The Committee rewrote the paragraph to state
that a school may spend all or part of the 15 percent academic base
funding reserved under paragraph (a)(1) on school-wide programs to
benefit all students (including those without disabilities) only if:
(1) The school can document that it has met all needs of students
with disabilities with those funds; and
(2) After having done so, there are unspent funds remaining from
the funds.
Section 39.105 Are Additional Funds Available for Special Education?
Comment: In paragraph (a) the term ``base funding'' should be
``base academic funding'' and a reference to the 15 percent reserve
should be inserted.
Response: The Committee acknowledged and considered this comment,
and changed the paragraph to read, ``a school may supplement the 15
percent base academic funding reserved under Sec. 39.104, for special
education with funds available under part B of the Individuals with
Disabilities Education Act (IDEA).''
Comment: Revise paragraph (b)(2) to read, ``provide training to
staff to improve delivery of part B funds.''
Response: The Committee acknowledged and considered this comment
and revised the section to read, ``providing training to Bureau staff
to improve the delivery of part B funds.''
Comments: A commenter suggested clarification was needed on who
makes the determination that schools have demonstrated that the
reserved ISEP funds are inadequate to pay for additional SPED services
and what criteria are used.
Response: The comment was acknowledged and considered and no action
was taken, as the Committee felt the rule was clear.
Section 39.106 Who Is Eligible for Special Education Funding?
Comments: There were two comments on this section suggesting that
clarification was needed as to whether the minimum age requirement only
applies to ISEP SPED and if so why. The answer to the question of who
is eligible for special education funding is not unique to special
education. Rather it establishes age limits applicable to all students
in the Bureau-funded system. It should be moved to the definition
section.
Response: The comment was acknowledged and considered and no action
was taken as this section only refers to who is eligible for Special
Education Funding.
Section 39.107 Are Schools Allotted Supplemental Funds for Special
Student and/or School Costs?
Comment: The Committee should take a serious look at categorical
funding based on the special and unique educational needs of Indian
children. The primary consideration seemed to be based on the
distribution of available funds instead of the needs of children. The
categorical funding must be based
[[Page 22187]]
on the actual services provided to student through a weighted student
unit.
Response: The Committee did not reach consensus on this item. The
Federal team could not consider going back to a categorical system of
basing the funding to a student on the type of disability that student
may have.
Comment: The answer to this question is inconsistent with the
definition of the term ``school-wide supplemental funds.'' In that
definition four conditions applicable to a school generate supplemental
funds. By contrast, in the Sec. 39.107 chart, a mix of both student
conditions and school conditions that generate supplemental funding
appear. The weights shown in the chart are not consistent.
Response: The Committee acknowledged and considered this comment
and revised the chart.
Comments: Several commenters suggested that the Committee missed
several categories of funding. One comment suggested serious
consideration be given to allowing all schools to offer early childhood
programs instead of using discretionary programming such as the FACE
program. The funding of FACE should be moved to ISEP and each school
should have a weight of at least .5. Another commenter suggested other
programs be considered like vocational and technical education, food,
summer programming, and electric technologies.
Other commenters suggested that school personnel costs and the cost
of living should be taken into consideration and that all children
should be funded equally. No child should be funded less than another
child. The WSU for K-12 should be the same 1.5 WSU, especially for K's.
The young children need more supervision, small classes, and therefore
should not be only 1.15 WSU. This grade needs a teacher and an aide.
Especially since the proposed WSU for intense bilingual is planned to
be decreased to .13 WSU and all children will be eligible, this
decrease will greatly impact our kindergarten program if the intense
bilingual is decreased and the kindergarten grade WSU is the same. This
should also apply to residential; the WSU should be the same for all
grades.
Response: The comments were acknowledged and considered and no
action was taken as the Committee does not have authority to provide
funding to early childhood education and because the commenters did not
present any additional arguments that had not already been considered
by the Committee in the draft proposed rules.
Section 39.110 Can ISEF Funds be Distributed for the Use of Gifted and
Talented Students?
Comments: There were several comments on the Gifted and Talented
program. One commenter suggested that, as the rule is written, gifted
and talented programs, apply only to academic programs. The weight for
funding is included in ISEP, which is deducted before distribution of
funds. Under this scenario, the rule creates a deficit for Residential
Programs in boarding schools and major problems for residential
dormitories that have absolutely no access to these gifted and talented
funds. The gifted and talented program funds should be available to
residential programs.
Another commenter suggested that it can be predicted that the
gifted and talented program will grow by anywhere from 10-20 percent
from current levels and such growth could create an impact in excess of
$20 million that will affect only residential programs.
Another commenter suggested that the ``gifted programs have always
used the idea of giftedness from the dominant culture, the Native ideas
of giftedness have not been readily considered.'' It is important that
Bureau schools make the proper assessment of giftedness, but whose
definition is being used? Tribal leaders, parents, and the community
should be involved in the process of defining gifted. The idea of
placing a cap on the number of gifted students is not an option but
rather an evaluation of what gifted means to the Native person and how
that differs from the mainstream society. It should not be easy to get
into the gifted program with the Bureau, but rather the school and
community should give a clear demonstration of giftedness and how the
school can support and advance the giftedness of the student in
whatever ways appropriate.
Response: The Committee could not reach consensus on these
comments. These comments were acknowledged and considered by the
Committee, but the Committee determined that the comments did not raise
new concerns not already considered in the proposed rule. The Committee
therefore took no action.
Comment: Overall, the rules and procedures on Gifted and Talented
seem cumbersome and administering the program is difficult due to the
potential for abusing the count.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.112 What Is the Limit on the Number of Students Who Are
Gifted and Talented?
Comment: Although the rule states there is no cap on the number of
gifted and talented students a school can have, there is a cap of 15
percent in Leadership and Visual and Performing Arts. Critical Thinking
as a specific category has been eliminated. There should not be a cap
on Gifted and Talented and the six specific categories should be
restored.
Response: The comment was acknowledged and considered and no action
was taken. This is because the Committee felt they did not limit the
number of students who can be classified as gifted and talented, but
limited the number of students that would receive ISEP funding as a
gifted and talented student.
Comment: In order to better correspond to the answer provided, this
question should be revised to read: ``Is there a limit on the number of
students a school can identify for the gifted and talented program?''
Response: The comment was acknowledged and considered and no action
was taken.
Comment: The proposed funding formula appears to be very
cumbersome, complicated and an unrealistic method upon which schools
would be dependent for funds to operate programs. A simpler formula
needs to be established that would guarantee some degree of stability
regarding operating funds for the entire year.
Response: The comment was acknowledged and considered and no action
was taken because the Committee determined that the comments did not
raise concerns that the Committee had not already considered in the
proposed rule and therefore no action was taken.
Section 39.113. What are the Special Accountability Requirements for
the Gifted and Talented Program?
Comment: No outcome state is provided for what happens if a school
does not meet the two requirements in this section.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.114 What Characteristics May Qualify a Student as Gifted and
Talented for Purposes of Supplemental Funding?
Comment: This question is awkwardly worded. (The question as
published in the proposed rule read, ``How does a school receive
funding for gifted and talented students?'') Consider
[[Page 22188]]
revising the question to read, ``what characteristics may qualify a
student as gifted and talented for purposes of supplemental funding?''
Response: The Committee acknowledged and considered this comment
and revised the question as suggested.
Comment: In (e) strike ``determined by.''
Response: The Committee acknowledged and considered this comment
and struck the term ``determined by.''
Comments: Several commenters suggested changing the caps on
specific gifted and talented funding. One commenter suggested that a
cap of 25 percent of the student body for gifted and talented should be
used. Another believed that the 15 percent cap on leadership and visual
and performing arts will have a significant impact on schools as many
Native American students fall into these categories. Restricting the
number of Indian students that can be identified as gifted or talented
in any given school setting can stifle the talents of countless
students. Indian students who qualify for this program should not be
left out simply because the quota has been filled. Several commenters
suggested they would like the rule reconsidered to require
documentation to identify all students who truly qualify for the gifted
and talented program.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt they did not limit the number of
students who can be classified as gifted and talented, but limited the
number of students that would receive ISEP funding as a gifted and
talented student.
Comment: Paragraphs (a) and (b) do not identify the measuring tool,
and paragraph (c) provides an option of NRT or CRT assessment. One
commenter suggested that only norm-referenced tests (NRTs) or IQ tests
be used for gifted and talented categories in Sec. 39.114(a)-(c).
Schools should develop their own criteria for placement in categories
(d) and (e).
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language was clear and the
Committee did not want to limit schools' options.
Comment: This section does not specify what it is the student has
to score in the top 5 percent of in order to be eligible. Does it mean
the top 5 percent of students tested nationwide or just the school or
some other group of students? ``Intellectual Ability'' is
differentiated from ``academic aptitude/achievement'' even though it
would seem that these might identify essentially the same students.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language was clear.
Comment: Several commenters suggested that the criteria for gifted
and talented students were overly inclusive. One commenter suggested
the ``Leadership'' and ``Visual and Performing Arts'' criteria are
quite subjective and will probably result in the schools simply
identifying 15 percent of their student body for each category. For
these students, special services will need to be available that will
not be available to other students. This may cause implementation
problems for students and schools alike. Another commenter suggested
that their agency restrict the school to a maximum of 10 percent of
enrollment in gifted and talented.
Other commenters suggested that the weighted student unit (WSU) for
the gifted and talented program should be the same for all grades K-12
at .5 or .62 WSU. One commenter suggested that a discrepancy exists
because of the low cap placed on measurable giftedness and the high cap
on subjective giftedness. Nationwide, gifted talented student
identification averages between 10-15 percent. In the recommended
rules, giftedness can easily run in excess of 50 percent. Anything
categorized above 50 percent should be considered the base program and
curriculum should be adjusted accordingly.
Several commenters also suggested imposing a cap on gifted and
talented that is no greater than the national average in any given
year.
Response: These comments were acknowledged and considered but no
action was taken, as the 15 percent enrollment number was the result of
several days of negotiations in which these issues were discussed at
length.
Comment: The proposed regulation does not indicate what grade
levels are eligible for gifted and talented designations. The commenter
objects to proving gifted and talented services before third grade.
Response: The Committee acknowledged and considered this comment
and no change was made as the grade level was left to the discretion of
the schools.
Comment: What is the purpose of screening annually and is only
annual screening permitted?
Response: The Committee acknowledged and considered this comment
and no change was made as the Committee felt the language was clear.
Section 39.115 How Are Eligible Gifted and Talented Students Identified
and Nominated?
Comment: This question should be revised so that the term ``gifted
and talented'' appears in the question. (In the proposed rule, the
question read: How are eligible students identified and nominated?)
Suggested rewording: ``How may students can be nominated for gifted and
talented designation?'' Response: The Committee acknowledged and
considered this comment and changed the question to include the term
``gifted and talented.''
Comment: The second sentence of paragraph (a) should be edited as
follows: ``A student may be nominated for gifted and talented
designation using the criteria in Sec. 39.114 by any of the following:
* * * (5) The student himself or herself.''
Response: Paragraph (a) was changed to read, ``(a) Screening can be
completed annually to identify potentially eligible students. A student
may be nominated for gifted and talented designation using the criteria
in Sec. 39.114 by any of the following: * * * (5) The student himself
or herself.''
Comment: In paragraph (b) the word ``child's'' should be changed to
``student's.''
Response: The Committee acknowledged and considered this comment
and changed the term ``child's'' to ``student's.''
Comment: The school is concerned with the proposed removal of the
intensive residential guidance program. If the program is eliminated it
will be easier to eliminate the services and the funding that are
needed to meet these students' needs.
Response: The comment was acknowledged and considered and no action
was taken because the Committee intended all students to receive these
services.
Section 39.117 How Does a School Provide Gifted and Talented Services
for a Student?
Comment: Neither the answer to this question nor any other proposed
gifted and talented regulation describes the level of gifted and
talented services that must be provided. A provision should be
developed that includes the level of services requirements.
Response: The comment was acknowledged and considered and no change
was made to the rule because the comment did not present any additional
argument that had not already been
[[Page 22189]]
considered by the Committee in drafting the proposed rules.
Section 39.118 How Does a Student Receive Gifted and Talented Services
in Subsequent Years?
Comment: The two sentences of paragraph (a) are contradictory. If a
student does not have to reapply for a gifted and talented designation,
why must the student be retested every 3 years? The second sentence
should be deleted.
Response: The Committee acknowledged and considered this comment
and changed the last sentence of paragraph (a) to read, ``However, the
student must be reevaluated at least every 3 years through the 10th
grade to verify eligibility for funding.''
Comment: There were several comments suggesting in paragraph (b),
the cross-reference to Sec. 39.114 should read ``(d) or (e)'' rather
than ``(e) or (f).''
Response: The Committee acknowledged and considered this comment
and changed the cross reference to read ``(d) or (e).''
Section 39.119 When Must a Student Leave a Gifted and Talented Program?
Comment: It is recommended that no student be tested out of gifted
and talented and therefore this section should be revised to the extent
it calls for testing out. If the section remains, how can a school
comply with paragraph (b)? Would the student have to be tested and
found to no longer qualify? If this remains, it should be limited to
students identified under leadership and visual performing arts only.
If the purpose of the testing required in paragraph (b) is evaluation
and testing of gifted and talented students' progress, this is
acceptable.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language in the proposed rule was
clear.
Section 39.130 Can ISEF Funds Be Used for Language Development
Programs?
Comment: The rules acknowledge the presence of students who are not
proficient in any language, but do not provide any means for
identifying them. While there is a test at Sec. 39.134 for testing
English ability, there is seemingly no measure for identifying the
skill of students in their Native language.
Response: The comment was acknowledged and considered and no action
was taken as the purpose of this section is to determine whether a
student has limited proficiency in English.
Comment: Several commenters supported this section of the proposed
rule. One tribal commenter agrees with the recommended special cost
factor of .13 for language programs. Not only has that been a concern
for many years, but it has not always been clear if Bureau schools had
permission to teach Native languages.
Another commenter suggested that the tribe supports the proposed
rule on Language Development programs, particularly the parts that seek
to ensure the goal of infusing Native language and culture in to school
curricula. However, the tribe does not agree with using ISEP funds to
support Language Development programs for Native students who are
predominantly ELL learners or are limited English language proficient
as ISEP funds should be used generally for all school programs.
Instead, funding for Language Development and ELL students should be
provided for separately and the WSU be appropriated at 0.25 based on
this new definition. The tribe expects Bureau to seek specific
appropriations from Congress to support Native Language development
curricula.
Response: The comment was acknowledged and considered and no action
was taken as these regulations have no affect on the amount of current
or future appropriations.
Section 39.131 What Is a Language Development Program?
Comment: Paragraphs (d) and (e) of this section seem to describe
the same student. If there was a different intent, one or both of the
paragraphs should be revised.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language was clear.
Comment: The School Board is afraid that the English proficiency
assessment will remove students from their Native Language program. If
the intent is to have all Native American students taught their Native
Language, more funding will be required to sustain the effort as the
funding will be subtracted from the general pool.
Response: The comment was acknowledged and considered and no action
was taken as these regulations have no effect on the amount of current
or future appropriations.
Section 39.132 Can a School Integrate Language Development Programs
Into Its Regular Instructional Program?
Comment: We strongly support the concept of the integration of
Native language programs into the regular curriculum.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.134 How Does a School Identify a Limited English Proficient
Student?
Comment: Since the proposed rules for AYP include using the
definition from the State Accountability Workbook in which the tribally
funded school is located, it would be appropriate to provide an option
for using the LEP assessment instrument approved for use within the
State in which the tribally funded school operates.
Response: The comment was acknowledged and considered and no action
was taken because the Committee felt this option was already available
to tribes.
Section 39.135 What Services Must Be Provided to an LEP Student?
Comment: The language indicating that services are to assist LEP
students become proficient in English and to the extent possible their
Native language seems too vague and ambiguous.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language was clear.
Comment: We support the .13 weight for the Language Development
Programs, so as not to adversely impact a school's ISEF allotment that
would occur if the current .2 weight for intense bilingual were
retained.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.137 May Schools Operate a Language Development Program
Without a Specific Appropriation From Congress?
Comment: The citation regarding Native Language curriculum is
incorrect. It should read 25 U.S.C. 2007(C)(1)(E).
Response: The Committee acknowledged and considered this comment
and the citation was changed to read 25 U.S.C. 2007(C)(1)(E).
Comments: Several commenters made suggestions on future
appropriations. One commenter suggested if Congress does not provide
additional ISEP funding for Native Language curriculum, Native Language
programs for restoration and enhancement should be funded solely out of
the new appropriation, and the ``Language Development Program''
described in these regulations should be altered accordingly. That is,
the ``Language
[[Page 22190]]
Development Program'' should be restored to the focus of teaching
English to students not proficient in that language and the weight for
these students should be restored to the current level of .2.
Another commenter suggested this section places a limit on the
amount of future Congressional appropriations that can be appropriated
for Native language programs. The statute on which this section is
based also seems indecipherable. It is not clear that this rule
captures the meaning of the statutory provision, whatever it may be.
Response: The comment was acknowledged and considered and no action
was taken as these regulations have no effect on current or future
appropriations.
Section 39.141 What Is the Amount of the Small School Adjustment?
Comment: The definition of small schools in the Proposed Rule needs
to be expanded slightly to include mores schools not accomplishing
economies of scale, and funding should take into account costs of
accreditation.
Response: The comment was acknowledged and considered and no action
was taken because the comment did not present any additional argument
that had not already been considered by the Committee in drafting the
proposed rules.
Comment: The school board agrees with the small school and small
high school adjustment but more funding is required so it does not take
away from the general pool.
Response: The comment was acknowledged and considered and no action
was taken as these regulations have no effect on the amount of current
or future appropriations.
Comment: Several commenters agreed with the Committee's
recommendation to offer an adjustment for schools with smaller school
populations.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.144 What Is the Small High School Adjustment?
Comment: The table that accompanies this section should be edited
for clarity. We recommend that the first column heading be phrased in
the form of a question because the answers that follow are either
``yes'' or ``no.'' We suggest, ``Does the school receive a small school
adjustment under Sec. 39.141?''.
Response: The Committee acknowledged and considered this comment
and changed the table to read, ``School receives a small school
adjustment under Sec. 39.141.''
Section 39.145 Can a School Receive Both a Small School Adjustment and
a Small High School Adjustment?
Comment: The first sentence of the answer should read, ``A school
that meets both of the criteria in Sec. 39.140 can receive both a
small school adjustment and a small high school adjustment.''
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language was clear.
Comment: The table that accompanies this section should be revised
to make it clearer.
Response: The Committee acknowledged and considered this comment
and changed the table to read 1-50 and 51-98.
Section 39.156 Is There an Adjustment for Small Residential Programs?
Comment: We object to this provision and request that it be
stricken. Residential programs already attract additional weights for
residential students. Residential programs that use commercial forms of
transportation receive 100 percent reimbursement for transportation
costs and therefore receive transportation funding at a higher rate
than schools that only use surface bus transportation.
Response: The comment was acknowledged and considered but the
Committee decided that the comments did not raise concerns that the
Committee had not already considered in the proposed rule and therefore
no action was taken.
Section 39.200 What Is the Purpose of the Indian School Equalization
Formula?
Comment: The tribe would like the ISEP week to be changed to either
the prior or subsequent week because the current week is American
Indian Week, which is a short week for the school, and because students
are allowed to participate in cultural activities taking place outside
the school and during that week. As a result, many students do not
attend that week, resulting in a loss of funding for the school.
Response: The comment was acknowledged and considered and no action
was taken, as funding under the new regulations will be based on
Average Daily Membership at schools.
Section 39.203 How Does OIEP Calculate ADM?
Comment: Paragraph (a) refers to Aperiodic reports' from schools
but does not indicate when these reports are to be filed. No provision
in part 39 states when ADM reports for academic programs are to be
compiled or filed. The frequency must be set out with consideration to
technological feasibility and administrative efficiency so that schools
are not forced to perform administrative tasks or incur unreasonable
expenses that are beyond their resources.
Response: The comment was acknowledged and considered and no action
was taken.
Comments: Several commenters supported the Committee's
recommendation to use Average Daily Membership to count students for
the purposes of ISEP academic funding. The Tribe also agrees with the
3-year rolling average. The proposed mechanism would enable the school
to better plan and budget for the upcoming school year based primarily
on a 3-year rolling average of student enrollment.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.204 How Does OIEP Calculate ISEF?
Comment: Both the question and answer should be edited. OIEP does
not calculate ISEF. It calculates the value of a WSU and then each
school's allotment under the ISEF. Paragraph (a) says the 3-year
average ADM is to be multiplied by ``the weighted student unit that is
applicable to eligible students.'' At what point is this multiplication
made? Is the 3-year average ADM multiplied by some weight total for the
current year? If the latter, how would the 3-year average relate to
weights assigned to the students for the current year? The terms
``supplemental units'' and ``supplemental weights'' are used in this
section. One term should be selected and referred to consistently
throughout the subpart.
Response: The Committee acknowledged and considered this comment
and added a new question before Sec. 39.203 to read: ``When does OIEP
calculate a school's allotment? OIEP Calculates a school's allotment no
later than July 1. Schools must submit final ADM enrollment figures no
later than June 15.'' The rule then goes on to keep Sec. 39.203 and
then changed Sec. 30.204 to read:
How does OIEP calculate a school's total WSU for the school
year? OIEP will add the weights obtained from the calculations in
paragraphs (1), (2), and (3) of this section to obtain the total
weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted
student unit for each grade level;
[[Page 22191]]
(2) Calculate any supplemental WSU generated by the students;
and
(3) Calculate any supplemental WSU generated by the schools.
The total WSU for the school year is the sum of (1), (2), and
(3). The method for calculating the three-year averages WSU is
illustrated in a table.
Comment: Funding should be based on prior year student ADM, so
schools will be better able to plan for the upcoming school year
regarding calendar days, contract days, and the number of personnel and
the budgets they can fund. The 3-year average requirement would make
estimating budgets more complicated and confusing.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: The Tribe recognizes the intent of the Committee to ensure
that schools are funded up front using the Average Daily Membership
method; however, the Tribe proposes using both Average Daily Attendance
and ADM in the funding formula. For example, students are counted on
the 40th and 100th days, while the ADM formula remains the same.
Response: The comment was acknowledged and considered but the
Committee decided that the comments did not raise concerns that the
Committee had not already considered in the proposed rule and therefore
no action was taken.
Section 39.206 How Does OIEP Determine a School's Funding for the
Upcoming School Year?
Comment: The term ``upcoming school year'' should probably read
``current school year.'' The term ``this year's'' appears in paragraph
(f).
Response: The Committee acknowledged and considered this comment
and deleted the term ``upcoming year's'' from the question and replaced
it with ``current school year's,'' for clarity.
Comment: The 7-step process outlined here is incomplete and in some
places incorrect. A full re-write of the provision is needed. There
were also several comments on the terms and references used in this
section.
Response: The Committee acknowledged and considered this comment
and changed the process (now located in Sec. 39.207) to read as
follows:
To determine a school's funding for the school year, OIEP uses
the following seven-step process:
(a) Step 1. Multiply the appropriate base academic and/or
residential weight from Sec. 39.103 by the number of students in
each grade level category.
(b) Step 2. Multiply the number of students eligible for
supplemental program funding under Sec. 39.107 by the weights for
the program.
(c) Step 3. Calculate the school-based supplemental weights
under Sec. 39.107.
(d) Step 4. Add together the sums obtained in steps 1 through 3
to obtain each school's total WSU.
(e) Step 5. Add together the total WSUs for all Bureau-funded
schools.
(f) Step 6. Calculate the value of a WSU by dividing the current
school year's funds by the average total WSUs as calculated under
step 5 for the previous 3 years.
(g) Step 7. Multiply each school's WSU total by the base value
of one WSU to determine funding for that school.
Comment: The cross-reference in paragraph (a) should be to Sec.
39.103.
Response: The Committee acknowledged and considered this comment
and changed the cross-reference to Sec. 39.103.
Section 39.207 How Are ISEP Funds Distributed?
Comment: Paragraph (b) states that the Act requires the second
payment to be made ``no later than December 1'' and the regulation
should reflect this command. As written, the sentence could be
interpreted as allowing the December 21 payment to be made after the
two recited actions are completed--verification of the school count''
and any appeals for the prior year--which could be sometime after
December 1. If the second payment were delayed to accommodate these
actions the regulation would conflict with the Act. The confusion
should be resolved by redrafting. What ``school (student)'' count is to
be verified? Schools are to receive payments based on the average of
the prior 3 years' student count, not on the count for the current
year. Thus, there would be no count to verify for the December 1
payment.
Response: The comment was acknowledged and considered, but the
Committee decided that it had already considered all of the concerns in
the proposed rule. For this reason, no action was taken.
Comment: The Tribally Controlled Schools Act requires the first
payment of funds to be an amount equal to 80 percent of the amount the
school was entitled to in the preceding academic year. This needs to be
continued. The integrity of the base academic and residential programs
should not be eroded by special cost factors.
Response: The comment was acknowledged and considered, but since
the Committee had already considered the concerns raised by comment, no
action was taken.
Section 39.208 When May a School Count a Student for Membership
Purposes?
Comment: At the end of the first sentence add ``and shall be
counted for ADM purposes.''
Response: The Committee acknowledged and considered this comment
and changed the first sentence as suggested.
Comment: The proposed rules for AYP include using the definitions
from the State Accountability Workbook in which the tribally funded
school is located. It would be appropriate to provide an option for
using the State definition of the term ``enrolled student'' for the
State in which the tribally funded school operates.
Response: The comment was acknowledged and considered and no action
was taken.
Comments: There were several comments regarding the transition from
count week to ADM. One Commenter suggested that the rule seems to omit
from the student count students that are enrolled after the 10th day of
school regardless of their attendance after that point. This would seem
to include transfer students. Another felt the relationship of ADM to
being ``counted as enrolled'' is unclear and as stated does not seem to
make sense. It seems that only students who were present during one of
the first 10 days of school can be used to calculate ADM no matter how
often they are in attendance later on in the year. This does not seem
to be true ADM, but is arbitrarily limited. One of the reasons for
switching to ADM was to avoid such arbitrary funding calculations.
Response: The comment was acknowledged and considered and no action
was taken because the Committee did not limit ADM to students enrolled
the first 10 days of school. The rule allows for a student to be added
to the membership and counted for ADM throughout the year.
Comment: The Tribe agrees with the proposal to stop using ``count
week'' as the way to distribute funding to Bureau schools.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.210 What Other Categories of Students Can a School Count for
Membership Purposes?
Comment: The physical attendance requirement for alternative,
Internet, college, and video courses is not real. Students are in these
programs because they struggle with attending school regularly. There
needs to be another
[[Page 22192]]
way of tracking participation, maybe reimbursement for completed
courses.
Response: The comment was acknowledged and considered and no action
was taken because the Bureau of Indian Affairs is not authorized to
fund satellite schools and because the comment did not present any
additional argument that had not already been considered by the
Committee in the draft proposed rules.
Section 39.211 Can a Student Be Counted as Enrolled in More Than One
School?
Comment: This section states that a student can be counted in more
than one school as long as the student meets the criteria of Sec.
39.208. However, it would seem that the student would be counted as
being in two different schools at the same time.
Response: The comment was acknowledged and considered and no action
was taken because the Committee felt the language of the section was
clear.
Section 39.213 What Are the Minimum Number of Instructional Hours
Required in Order To Be Considered a Full-time Educational Program?
Comment: Each accreditation agency requires different instructional
hours. It would be better to state that if a school is accredited it
can receive funding.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.215 How Does ISEF Fund Residential Programs?
Comment: Edit the second sentence to read ``funding for residential
programs is based on the average of the 3 previous years'' residential
WSUs.
Response: The Committee acknowledged and considered this comment
and changed the second sentence as suggested.
Comment: Residential programs are smaller and have fewer staff than
schools. Requiring more documentation and reporting seems overwhelming
and discriminating in nature.
Response: The comment was acknowledged and considered and no action
was taken.
Comment: The existing ISEP formula does not provide adequate
funding to operate a residential and boarding school program. The
regulations as written will effectively eliminate peripheral
dormitories and significantly impact the ability of residential
boarding schools to financially survive. The regulations should be
revisited to make the necessary corrections to raise the residential
and boarding school weights to adequately fund the program. The formula
should be adjusted to fund all residential and boarding school students
at a base weight of 2.0.
Response: The Committee acknowledged and considered this comment,
however no change was made to the funding formula because the
commenters did not present any additional arguments that had not
already been considered by the Committee in the draft proposed rules.
Section 39.216 How Are Students Counted for the Purpose of Funding
Residential Services?
Comment: Paragraphs (b) and (c) should be revised to refer to the
``first full week in October'' in order to be consistent with paragraph
(a).
Response: The Committee acknowledged and considered this comment
and changed the paragraphs to refer to the ``first full week in
October.''
Comment: While instruction switched to ADM, residential service
continues to be funded on a count week; however the average of the
previous 3 years would be the count that is used. This decision was
probably made due to the wide fluctuations of dormitory attendance due
to various factors.
Response: The comment was acknowledged and considered and no action
was taken because there was no suggested change.
Section 39.217 Are There Different Formulas for Different Levels of
Residential Services?
Comment: There were several comments suggesting a discrepancy
between Sec. 39.217(c) and Sec. 39.218. Section 39.217(c) states that
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. Section 39.218 states that schools must maintain 25
percent of its residency each month to avoid severe financial
sanctions. The tribe request that Sec. 39.217(c) be changed to 25
percent to retain continuity in the rule.
Response: The comment was acknowledged and considered but the
Committee decided that the comments did not raise concerns that the
Committee had not already considered in the proposed rule and therefore
no action was taken.
Comment: Section 39.216 establishes a 3-week count period for
residential programs. Did the Committee intend to add the weekend
before the 3-week period for the purposes of qualifying for residential
funding?
Response: This comment was acknowledged and considered and no
action was taken.
Comment: Several commenters suggested changes to the table. One
suggestion was that the table should be revised to read (in either
table or sentence form): ``If a residential program operates 4 nights
per week or fewer, the weight for each residential student shall be
obtained by multiplying each student's base residential factor for the
appropriate grade, as set out in Sec. 39.103, by 4/7.'' ``If a
residential program operates 5, 6 or 7 nights per week, the weight for
each residential student shall be obtained by multiplying each
student's base residential factor for the appropriate grades, set out
in Sec. 39.103 by 7/7.''
Another suggestion asked this question about paragraph (b): This
paragraph requires at least 10 percent of the students in a residential
program to be in the dormitory 3 of the 4 weekends during the count
period. Is this correctly stated or should it read, ``2 of the 3
weekends during the count period?''
Response: These comments were acknowledged and considered and no
action was taken.
Comment: There were several comments seeking clarification of the
weekend services. One commenter suggested if a residential program only
intends to serve students 4 nights per week and receives funding for
only 4 nights, is it nonetheless expected to serve 10 percent of its
students over the weekend?
Another commenter suggested the different treatment for dormitories
that are open 5, 6, or 7 days from those open 4 nights a week will
likely have the effect of more dormitories staying open on weekends or
at least, being open on Sunday evening for returning students. The
effect of this change will be a shift of funding from day schools to
boarding schools. Even within boarding schools, a greater portion of
costs will shift to residential programs and away from instruction.
Response: The comment was acknowledged and considered but the
comments raised concerns that the Committee had already considered in
the proposed rule and therefore no action was taken.
Section 39.218 What Happens if a Residential Program Does Not Maintain
Residency Levels Required by This Part?
Comments: Several commenters had questions pertaining to this
section of the rule. One commenter asked, ``the penalty stated for
failing to meet the minimum retention requirement each month is the
loss of one-tenth of * * *
[[Page 22193]]
current year allocations. Since the school year runs for ten months,
the penalty is a full month's worth of funding. How can such a program
stay in operation for the month if it loses full funding for that
month? Does the Committee intend that the dormitory would close? If
that occurs, it is unlikely the dorm would reopen in the following
month. How is the loss of funding to be implemented? Since the Act
requires contract and grant schools to be paid in advance, does the
Committee contemplate that the Bureau would send a bill for
collection?''
Response: The comment was acknowledged and considered, but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: The requirement that monthly residential reports be filed
on the last school day of a month will likely pose an administrative
difficulty for OIEP at the end of each year. Many schools do not
complete their school year until sometime in June. Even if all
residential programs file timely reports for the month of June, it is
possible that OIEP will have only a few business days left in June to
make the calculations needed to distribute the July 1 payment for the
next academic year.
Response: The comment was acknowledged and considered and no action
was taken because OIEP felt they would be able to make the calculations
based on these timeframes.
Comment: Provisions should be made for circumstances that might
temporarily close all or part of a dorm and prevent that program from
meeting the 10 nights/students/month minimum. Examples of these
circumstances are: (1) students absent due to an illness or injury and
(2) unforeseen circumstances, such as a flu epidemic or health/safety
situations.
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt this issue was addressed in Sec.
39.217(d).
Comment: When referencing the use of counts obtained from the
current system in the table, the term ``count weeks'' should be used to
differentiate from the proposed new system for residential counts,
which will occur over a 3-week period. In row (c) of the table
``systems or'' should be replaced with ``residential and academic
programs are.''
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.219 What Reports Must Residential Programs Submit To Comply
With This Rule?
Comment: A student must be in residence at least 10 nights during
each full school month in order to be counted. Does this mean that
months such as August, December, and June are not considered a ``full
school month'' and would not have to achieve the 10-night minimum? It
would be helpful to expressly list in the regulation the calendar
months that are considered ``full school months'' for the purpose of
the 10-night minimum.
Response: The Committee acknowledged and considered this comment
and added a new question after Sec. 39.219. The new question reads,
``What is a full school month?'' The answer is ``Each 30-day period
following the first day residential services are provided to students
based on the school residential calendar.''
Section 39.220 How Will the Provisions of This Subpart Be Phased In?
Comment: The answer should be reworded to read ``The calculation of
the 3-year rolling average of ADM (WSU) for each school and for the
entire Bureau-funded school system will be phased in as shown in the
following table.''
Response: The Committee acknowledged and considered this comment
and changed the answer to the language in the comment.
Section 39.400 What Is the Purpose of This Subpart?
Comment: This section, combined with Sec. 39.409, adds more
bureaucracy and additional expenses to OIEP. It is not necessary to
hire independent auditors because it creates mistrust. Funds are wasted
by implementing an external audit on the certified count.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: This provision should be edited to read: `` The purpose of
this subpart is to establish systematic verification and random
independent outside auditing procedures to hold administrative
officials and the school board, or tribal officials having
responsibility for student count and student transportation
expenditures reporting, accountable for accurate and reliable
performance of these duties. The subpart establishes systematic
verification and random independent outside auditing procedures to
accomplish this goal.''
Response: The comment was acknowledged and considered and no action
was taken.
Comment: The School Board wants to know how the Bureau would get a
refund from a grant school if the school was overfunded.
Response: The comment was acknowledged and considered and no action
was taken as the statute clearly outlines how the Bureau is to collect
overpayments.
Section 39.403 What Certification Is Required?
Comments: Several commenters asked what teacher certification and
school accreditation have to do with individual student records. This
is not an ISEP requirement.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: As written, paragraph (c) is meaningless. It should
identify precisely the certifications required for ELO, specialists,
and school superintendents so that a competent review of compliance
with the requirement to maintain such certifications can be made. In
addition, the provision should require that the certifications of
personnel be maintained and available for inspection at the office in
which they work as well as in a ``central location.''
Response: The comment was acknowledged and considered and no action
was taken.
Comment: It should be clarified that for the purposes of
confidentiality that Special Education files may be maintained in a
separate location per IDEA and FERPA.
Response: The comment was acknowledged and considered and no action
was taken because these regulations are subject to IDEA and FERPA,
which have their own regulations addressing such issues.
Comment: The change in accountability of student eligibility and
attendance is a good step. The commenter agrees that all schools should
maintain files and certify their accuracy relating to documentation of
student eligibility to receive base and supplemental services. The
concept of holding each Bureau education line officer accountable for
this shows an attempt to improve Bureau's level of service.
[[Page 22194]]
Response: The comment was acknowledged and considered and no action
was taken.
Comment: Paragraphs (a) and (b) should specify when the required
certifications must be made and submitted. Is this a one-time-per-
academic-year requirement? If so, when must the requirement be
satisfied? If this certification is a periodic requirement, state the
frequency.
Response: The comment was acknowledged and considered and no action
was taken.
Comment: When will the ELOs annual reviews be conducted? At the
beginning or end of the academic year? Periodically throughout the
year?
Response: The comment was acknowledged and considered and no action
was taken because the Committee felt that Sec. 39.405 answered this
question.
Comment: Clarification is needed as to who will pay for the outside
audits the Director is to conduct.
Response: The comment was acknowledged and considered and no action
was taken because the Committee felt the regulation was clear.
Section 39.405 How Will Verifications Be Conducted?
Comments: There were several comments on the timing of
verification. One commenter suggested the first two sentences seem to
address verification of the academic count, and require a minimum of
one day per grading period to be included in the verification survey.
Does this mean that the verifications cannot be made until the end of
the year when all the grading periods have been completed?
Another commented that the last sentence relates to verification of
the residential count. Verification of the count for the count period
makes sense, but there is no statement when that verification will
occur. Since the regulations do not establish a time for submitting the
residential count, it is impossible to tell when the verification will
take place. Also, what method and frequency will the ELO use to verify
residence during the remainder of the year?
Response: The comment was acknowledged and considered and no action
was taken because the Committee felt that the regulation clarified that
this was an ongoing process.
Section 39.406 What Documentation Must the School Maintain for
Additional Services It Provides?
Comment: Services from certified education personnel should not be
required.
Response: The comment was acknowledged and considered and no action
was taken.
Comment: The requirement of physical attendance at the school for
at least 3 hours per day may restrict students from fully participating
in college-based advanced placement opportunities for more than half of
an ordinary school day. This would impede the ability of some highly
capable students to receive full dual high school and college credit
from the many State programs. An arbitrary restriction of 3 hours per
day in physical attendance is not consistent with the Bureau's post-
secondary placement goals.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Section 39.407 How Long Must a School Maintain Records?
Comment: Records retention should be for only 3 years.
Response: The comment was acknowledged and considered and no action
was taken because all records are subject to Federal records retention
timeframes.
Section 39.409 How Does the OIEP Director Ensure Accountability?
Comment: In paragraph (a)(1), the purpose of the audit is clearly
intended to be an audit of education line officer performance. But in
(b)(1) and (2), the auditor tasks relate to the accuracy of the
school's reports, rather than to the integrity of the ELO's review.
Paragraph (b) should be revised to make it clear that it is the ELO's
performance that is under review.
Response: The Committee acknowledged and considered this comment
and changed the answer to reflect the language in the comment.
Comment: This section, read in conjunction with Sec. 39.400, adds
more bureaucracy and additional expenses to OIEP. It is not necessary
to hire independent auditors because it creates mistrust. Funds are
wasted by implementing an external audit on the certified count.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: Paragraph (a)(1): Who will decide which school in each
OIEP line office is selected for the random filed audit each year?
There should be a method to ensure that contract, grant, and Bureau-
operated schools in a line office are selected over time, and that the
same school is not ``randomly'' selected for repeated audit. If such
were to be permitted, a line offer's model school could be routinely
selected.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Comment: This section calls for an independent audit of at least
one school per line officer per year. This would be over 20 audits per
year to be done at Central Office expense. This could become an
unfunded mandate, as there has been little or no interest in increasing
funding for Bureau education administration. If this is the key to
accountability, then it needs to be in the FY 2005 or 2006 budget
request.
Response: The comment was acknowledged and considered and no action
was taken as this regulation has no impact on budget requests.
Comment: This section establishes criteria for auditing firms and
calls for licensed CPAs who audit under Single Audit Act. This does not
seem appropriate since this is not an audit of accounting procedures.
This is an audit of student counting and should call for consulting
firms that are expert in such procedures and familiar with the
classifications that result in student weights.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Section 39.412 What Sanctions Apply for Failure To Comply With This
Part?
Comment: Paragraph (b) is intended to ensure that Bureau and school
administrative officials are held to account for actions described in
paragraph (a), but the phrase ``unless prohibited by law'' could defeat
the sunlight the provision seeks to ensure. Bureau should provide the
Committee with a legal opinion on the question whether Federal law
permits or prohibits performance deficiency personnel actions involving
Federal employees to be reported to the affected tribal governing body.
If Federal law would prohibit such reporting, this provision is
meaningless with regard to Federal employees and would apply only to
contract and grant school employees. The Committee should determine if
such an outcome is supportable.
[[Page 22195]]
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.413 Can a School Appeal the Verification of the Count?
Comment: This provision does not state when disallowances would be
made nor when they will be communicated to the affected school. Nor
does it set out a time period for the appeal.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.500 What Emergency and Contingency Funds Are Available?
Comment: Paragraph (a) says the reserved amount is to be ``1
percent of funds from the allotment formula.'' This is not a precise
description of the funds involved. It should be re-written to reflect
the Act (25 U.S.C. 2007).
Response: The comment was acknowledged and considered and no action
was taken as the Committee felt the language in the proposed rule was
sufficient.
Section 39.501 What Is an Emergency or Unforeseen Contingency?
Comment: This section requires that all criteria in paragraphs (a)
through (e) be met to qualify for contingency funds. Paragraphs (c) and
(e) should be revisited by the Committee. Paragraph (c) would eliminate
any event that could have been covered by an insurance policy. This is
objectionable, as in theory; nearly any event could be covered by an
insurance policy if one is willing to pay the premium for the coverage.
Paragraph (e) requires someone (OIEP Director) to make a very
subjective judgment as to whether the event could have or have not been
prevented by prudent action by officials responsible for the education
program. The presence of these two provisions in the regulation could
prevent any event from qualifying for contingency funds.
Response: The Committee acknowledged and considered this comment
and changed paragraph (c) to read ``It is not covered by an insurance
policy in force at the time of the event.''
Comment: The section states the criteria for identifying what the
contingency fund can be used for and indicates that the fund cannot be
used in cases of mismanagement, malfeasance, or willful neglect. While
it is clearly not the intent of the fund to cover such costs, the
Bureau needs to be ready for situations where a school has been grossly
mismanaged and there has been a resumption or other change in
management late in the year and little or no funding remains in the
school's budget. There is probably no other source of funds in such a
situation.
Response: The comment was acknowledged and considered and no action
was taken as the comment did not suggest a change to the rule.
Section 39.502 How Does a School Apply for Contingency Funds?
Comment: The final sentence must be revised to provide that the
Director will respond to the request for contingency funds ``within 30
days or receipt of request.'' The provision should also allow a school
to send a request for contingency funds directly to the Director, with
a copy to the ELO. This is needed to ensure that a school's request
reaches the Director even if the ELO fails to forward it to the
Director within 48 hours as required by this section.
Response: The comment was acknowledged and considered but the
Committee decided that the comments did not raise concerns that the
Committee had not already considered in the proposed rule and therefore
no action was taken.
Section 39.504 May Contingency Funds be Carried Over to a Subsequent
Fiscal Year?
Comment: Add a second sentence: ``Contingency funds provided to a
contract or grant school shall be available for expenditures without
fiscal year limitations.''
Response: The comment was acknowledged and considered and no action
was taken.
Comment: This states that Bureau operated schools may carry over
contingency funds to the next fiscal year. Has it been researched and
verified that this is possible?
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Section 39.600 Are Bureau-Operated School Board Expenses Funded by ISEP
Limited?
Comment: The school board does not believe money should be used for
school board expenses and training because it will take away from
student funding.
Response: The comment was acknowledged and considered and no action
was taken as the school board is authorized by statute to use these
funds.
Comment: The Tribe agrees with proposed rules on school board
training.
Response: The comment was acknowledged and considered and no action
was taken.
Section 39.602 Can Grant and Contract Schools Spend ISEP Funds for
School Board Expenses, Including Training?
Comment: There were several comments discussing which funds should
be used for school board training.
Response: The Committee acknowledged and considered this comment
and deleted Sec. 39.602 after determining it was unnecessary.
Section 39.603 Is School Board Training Required for All Bureau-Funded
Schools?
Comment: The answer to this question is incomplete as it does not
reflect the statutory provision at 25 U.S.C. 2007(c)(2)(B)(iii) which
recommends, but does not require, training for a tribal council that
serves as a school board. The provision should be revised as follows:
``Yes. Any new member of a local board or an agency school board must
complete 40 hours to training within one year of appointment, provided
that such training is recommended, but is not required, for a tribal
governing body that serves in the capacity of a school board.''
Response: The Committee acknowledged and considered this comment
and changed the answer to read, ``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, provided that such training is
recommended but is not required, for a tribal governing body that
serves in the capacity of a school board.''
Section 39.700 What Is the Purpose of This Part?
Comment: Subpart G should be revised to read ``Student
Transportation.''
Response: The Committee acknowledged and considered this comment
and made the suggested change.
Comment: This question should be revised to read ``What is the
purpose of this subpart?''
Response: The Committee acknowledged and considered this comment
and made the suggested change.
Comment: Paragraph (a) does not expressly state that a school will
receive funding for student transportation. Proposed revision: ``(a)
The purposes of this subpart are to provide funds to each school for
the round trip transportation
[[Page 22196]]
of students between home and school, and to describe how transportation
mileage and expenses are to be calculated and reported.''
Response: The comment was acknowledged and considered and no action
was taken.
Comment: The tribe supports the proposed rules regarding
transportation but recommends that schools be funded for two curricular
enrichment activities as a part of the outdoor education programs.
Response: The comment was acknowledged and considered but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Section 39.701 What Definitions Apply to Terms Used in This Subpart?
Comment: ISEP count week is defined but that method for counting
students would be replaced with the 3-year rolling average. Perhaps the
term and its definition should be changed to ``transportation mileage
count week'' since the last full week in September would be used to
count mileage only. If this revision is made, the new term must be
reflected elsewhere in the subpart.
Response: The Committee acknowledged and considered this comment
and made the suggested changes.
Comment: Is the definition of ``unimproved roads'' consistent with
the current usage where ``unimproved roads'' generate additional weight
for mileage count? If a road has a drainage ditch but is unpaved, it
would not meet the stated definition.
Response: The comment was acknowledged and considered, but the
Committee decided that the comments raised concerns that the Committee
had already considered in the proposed rule and therefore no action was
taken.
Section 39.704 Are Schools Eligible for Other Funds To Transport
Residential Students?
Comment: If this provision is intended to apply only to expenses
incurred in transporting residential students by commercial carriers,
the question and answer should be revised to so state.
Response: The Committee acknowledged and considered this comment
changed the question to read, ``Are schools eligible to receive
chaperone expenses to transport residential students?''
Section 39.705 Are Schools Eligible for Other Funds To Transport
Special Education Students?
Comment: The term ``other funds'' in the question is misleading.
Suggested rephrase: ``Under what circumstances may a school count
mileage incurred in transporting special education students?'' The
answer seems to be contradicted with Sec. 39.707(a)(3).
Response: The Committee acknowledged and considered this comment
and changed the question to read ``Are schools eligible for
transportation funds to transport special education students?''
Comment: It would be better to identify what school bus
transportation is allowable and count all of it and then request
appropriations. If you say these are not fundable then Congress will
never fund them.
Response: The Committee acknowledged and considered this comment
and changed the question to read ``Which student transportation
expenses are currently not eligible for Student Transportation
Funding?'' The answer was also changed to read ``The following
transportation expenses are currently not eligible for transportation
funding, although the funding will be collected under the provisions in
this subpart.''
Section 39.708 Are Non-ISEP Eligible Children Eligible for
Transportation Funding?
Comment: There were several comments suggesting changing the
language of this section to reflect the fact that transportation
funding is based on miles, not students. There were also comments on
the language referring to the transport of non-ISEP eligible students.
Response: The Committee acknowledged and considered these comments
and changed this section to read, ``Are miles generated by non-ISEP
eligible students eligible for transportation funding? No. Only miles
generated by ISEP eligible students enrolled in and attending a school
are eligible for student transportation funding.''
Section 39.710 How Does a School Calculate Annual Bus Transportation
Miles for Day Students?
Comment: When is ISEP count week?
Response: The Committee acknowledged and considered this comment
and changed this section to refer to ``student transportation count
week''.
Sections 39.720-722 [Various Titles]
Comment: There were several comments on the limitations of trips
outlined in the chart.
Response: The Committee acknowledged and considered this comment
and deleted the chart.
Section 39.721 What Transportation Information Must Off-reservation
Boarding Schools Report?
Comment: There were several comments on the need for additional
clarity in this section.
Response: The Committee acknowledged and considered this comment
and changed this section to read as follows:
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 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
busses, 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 sites of special services, and to extra-curricular
activities;
(4) Medical trips;
(5) Maintenance and Service costs;
(6) Driver costs; and
(7) All expenses referred to in Sec. 39.707.
Section 39.722 What Transportation Information Must Day Schools or On-
reservation Boarding Schools Report?
Comment: The question should be edited to read ``What
transportation program information must day schools, on reservation
boarding schools, and peripheral dormitories report?''
Response: The Committee acknowledged and considered this comment
and changed the question as suggested.
Comment: Paragraph (b) should be edited for clarity. For
example, all of the information requested in paragraph (b)(1) is
useful, but all elements do not constitute ``fixed vehicle costs.''
Some of the information sought is descriptive of the vehicles used
not their costs.
Response: The Committee acknowledged and considered this comment
and changed paragraph (b) to add the term ``and other costs.''
Comment: Paragraph (b)(4) should be revised to read ``mileage
driven to student medical trips'' and (b)(5) should be revised to
read ``costs of vehicle maintenance and
[[Page 22197]]
service, including cost of miles driven to obtain maintenance and
service.''
Response: The Committee acknowledged and considered this comment
and changed these sections to read (b)(4) ``Mileage driven for
student medical trips'' and paragraph (b)(5) to read, ``Costs of
vehicles maintenance and service costs including cost of miles
driven to obtain maintenance and service.''
Section 39.730 Which Standards Must Student Transportation Vehicles
Meet?
Comment: There were two comments suggesting tribal standards be
incorporated into this section.
Response: The Committee acknowledged and considered this comment
and changed this section to include ``State or tribal motor vehicle
safety standards.''
Section 39.732 How Does OIEP Allocate Transportation Funds to Schools?
Comment: Change ``OIEP allocates transportation miles'' to
``OIEP allocates transportation funds.''
Response: The Committee acknowledged and considered this comment
and changed the section to read ``OIEP allocates transportation
funds.''
Section 39.801 What Is the Formula to Determine the Amount Necessary to
Sustain a School's Academic or Residential Program?
Comment: Paragraph (a), ``minimal annual amount'' should read
``minimum annual amount.'' The formula should read ``Student Unit
Value x weighted Student Unit = Annual Minimum amount per student.''
Response: The Committee acknowledged and considered this comment
and changed the sections as suggested.
Comment: This would provide useless information for a useless
report and should be eliminated.
Response: The comment was acknowledged and considered and no
action was taken.
Section 39.802 What Is the Student Unit Value in the Formula?
Comment: The first sentence should be revised to read ``The
student unit value is the dollar value applied to each student in an
academic or residential program.''
Response: The Committee acknowledged and considered this comment
and changed the section as suggested.
Comment: Revise to read ``(a) The student unit instructional
value (SUIV) applies to a student enrolled in an instructional
program. It is an annually established ratio of 1.0 that represents
a student in grades 4-6 of an instructional program.''
Response: The Committee acknowledged and considered this comment
and changed the section as suggested.
Section 39.804 How Is the SUIV Calculated?
Comment: Additional instructions are needed to describe the
calculation in this part.
Response: The Committee acknowledged and considered this comment
and made the following changes:
(b) Step 2. Subtract the average specific Federal share per
student (title I part A and IDEA, part B) of the total revenue for
Bureau-funded elementary schools for the last school year for which
data is available as reported by NCES (15 percent)
(c) Step 3. Subtract the administrative cost grant/agency area
technical services revenue per student as a percentage of the total
revenue and current expenditures of Bureau-funded schools from the
last year data that is available
(d) Step 4. Subtract the day transportation revenue per student
as a percentage of the total revenue (current revenue) Bureau-funded
schools for the last school year, for which the date is available.
Section 39.805 What Was the Student Unit for Instruction Value (SUIV)
for the School Year 1999-2000?
Comment: What was the student unit for instruction value (SUIV) for
the school year 1999-2000? Revise the first sentence to read: ``The
process described in Sec. 39.804 looks like this, produces the
following results using figures for the 1999-2000 school year: $8,030
ANACE 1205 Average per student specific Federal share of total revenue
for Bureau of Indian Affairs-funded schools, 993 Administrative Cost
grant/technical services revenue as a percentage of total revenue, 658
Transportation revenue as a percentage of the total revenue, 85 Johnson
O'Malley funding 5259 SUIV.''
Response: The Committee acknowledged and considered this comment
and changed the section to read:
Section 39.805 What Was the Student Unit for Instruction Value (SUIV)
for the School Year 1999-2000?
The process described in Sec. 39.804 is illustrated in the table
below, using figures for the 1999-2000 school year:
Step 1: $8,030 ANACE
Step 2: -1205 Average specific Federal share of total revenue for
Bureau-funded schools
Step 3: -993 Cost grant/technical services revenue as a percentage
total revenue
Step 4: -658 Transportation revenue as a percentage of the total
revenue
Step 5: 85 Johnson O'Malley funding
Total: $5,259 SUIV
Section 39.806 How Is the SURV Calculated?
Comments: There were several comments on this section. Paragraph
(b) refers to a procedure but no procedure is set out.
Response: The comments were acknowledged and considered and no
action was taken.
VI. Comments on Part 42--Student Rights
25 U.S.C. 2016 requires 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. As was the case with the proposed
rule, the intent of this final rule is to provide minimum requirements
for fulfilling due process and student rights obligations owed to
students while allowing schools to provide for higher requirements and
to develop their own processes for handling violations of school
policies, including alternative dispute resolution where appropriate.
The final rule changes the proposed rule by including a new section on
when a formal disciplinary hearing is required.
General Comments: Some commenters agreed with the proposed rules in
part 42 and one commenter noted with approval the alternative dispute
resolution provisions.
Comment: Revise part 42.2 to set a threshold for disciplinary
actions that require a due process hearing. Limit the hearing
requirement to cases where potential disciplinary action is suspension
for more than 10 days or expulsion and expressly state it in the rules.
Response: We deleted in Sec. 42.2(c) ``for alleged violation of
school regulations for which the student may be subjected to
penalties'' after ``disciplinary actions.'' In order to set a threshold
for requiring disciplinary hearings and to provide for local school
policies and procedures, we added a new section: ``When does due
process require a formal disciplinary hearing? Unless local school
policies and procedures provide for less, at a minimum, a formal
disciplinary hearing is required prior to a suspension in excess of 10
days or expulsion.''
Comment: Include in part 42.2 information from the Notice of
Proposed Rulemaking Preamble to part 42 to provide more information on
the purpose of Sec. 42.2.
Response: We added a new question and answer setting a threshold
for requiring disciplinary hearings and providing for local school
policies and procedures which may require more than the minimum set out
in Sec. 42.2. (see response above)
Comment: Add to part 42 a provision addressing notices of
disciplinary action in Native languages and providing for an
interpreter at hearings.
[[Page 22198]]
Response: We did not add a provision addressing notices in Native
languages or interpreters at hearings because these issues can be
addressed at the local school level as needed.
Comment: Revise part 42 to allow schools to set due process
procedures that address both tribal and legal precedents and provide
for legal counsel only after these processes are completed.
Response: We did not make the suggested changes because Sec. 42.7
(now Sec. 42.8) provides for the right to legal counsel only at the
formal disciplinary hearing stage, not before it. In addition, Sec.
42.2 provides for use of applicable tribal constitutional and statutory
protections and does not preclude use of tribal precedents.
VII. Comments on Part 44--Grants Under the Tribally Controlled Schools
Act
Part 44 provides rules to comply with 25 U.S.C. 2501 et seq., the
Tribally-Controlled Schools Act of 1988 (TCSA). The Act included a new
section 25 U.S.C. 2509 which provides that, ``the Secretary is
authorized to issue rules relating to the discharge of duties
specifically assigned to the Secretary in this part.'' This rule
provides that Bureau of Indian Affairs manuals, guidelines, and policy
directives apply only if the grantee agrees. This rule provides
eligibility requirements and methods for termination. It incorporates
subpart E, part 900, 25 CFR for standards on financial, property, and
procurement management. The final rule amends the proposed rule
provision for method for payment to an annual payment. We said in
preamble to NPRM we were changing payments to once a year.
General Comments: One commenter states that this part is under-
funded. A commenter agrees that the TCSA needs little or no adjustment.
A commenter agrees with grant payments in July and December.
Comment: Provide for holding grant schools accountable after the
annual payment is issued.
Response: The Tribally-Controlled Schools Act covers this. We made
no changes.
Comment: Provide guidance for the Bureau for its role as the
responsible Federal agency under the Single Audit Act.
Response: No change is necessary. The comment is based on a
misunderstanding of the rule.
Comment: Clarify the Bureau's significant role with Bureau-funded
schools and the Memorandum of Agreement between Bureau and the
Department of Education (DOE) for Bureau's administering of funds that
come through DOE.
Response: No change was made. The comment is based on a
misunderstanding of the rule.
Comment: Revise Sec. 44.101 to add a new (a): ``The Tribally
Controlled Schools Act'' and reformat the remaining paragraphs as (b)
and (c).
Response: The change was made for clarity.
Comment: Revise Sec. 44.101 because the Secretary is bound also by
Public Law 100-297 and appropriations laws.
Response: No change is necessary. The comment is based on a
misunderstanding of the rule.
Comment: Revise Sec. 44.104 to change ``resumption'' to
``reassumption'', change ``BIA'' to ``the Secretary'', and change
``tribe'' to ``the tribal governing body.''
Response: We changed Sec. 44.104(c) to read as follows:
Sec. 44.104 How Can a Grant Be Terminated?
A grant can be terminated only by one of the following methods:
(a) Retrocession;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by the Secretary.
Comment: Revise duplicative portions of Sec. 44.106 and revise to
complete statement of requirements of 25 U.S.C. 2505(c).
Response: No change is necessary because 25 U.S.C. 2001 covers this
issue.
Comment: In Sec. 44.106 add a new section to add the conditions
for corrective action for a grant school that fails to become
accredited by January 8, 2005.
Response: No change is necessary because 25 U.S.C. 2001 covers this
issue.
Comment: In Sec. Sec. 44.106 and 44.107 include guidance for the
Bureau and tribes for dealing with problems grant schools have had
regarding eligibility.
Response: The comment suggests discussions that are not relevant to
this rule. No change was necessary.
Comment: Revise the question in Sec. 44.107 to read: ``Under what
circumstances may the Secretary reassume a program?''
Response: The change was made for clarity.
Comment: Revise the answer in Sec. 44.107 to read: ``The Secretary
may only reassume a program in compliance with 25 U.S.C. 450m and 25
CFR part 900, subpart P. The tribe or school board shall have a right
to appeal the reassumption pursuant to 25 CFR part 900, subpart L.''
Response: The answer was revised as suggested for clarity.
Comment: In Sec. 44.108 the citation to the Prompt Payment Act
needs legal review.
Response: No change was made. The comment is based on a
misunderstanding of this section.
Comment: Revise Sec. 44.108 to include funding available under
continuing resolutions.
Response: No change was made. The comment is not relevant to the
rule.
Comment: Revise Sec. Sec. 44.108 and 47.3 for consistency on date
for notification of funding.
Response: This cannot be done because the Act includes two
different dates.
Comment: Revise Sec. 44.109 to include that the grantee should
have the right to appeal the assertion that an overpayment occurred and
appeal the amount of overpayment claimed.
Response: Section 44.109 was revised to delete that the grantee
must return the overpayment within 30 days of notification of an
overpayment. The grant recipient has 30 days after the final
determination that an overpayment occurred to return the amount of the
overpayment.
Comment: In Sec. 44.109 clarify whether it is procedurally
possible for the Bureau to receive the overpayments to grant schools
and redistribute them.
Response: No change was made. The comment is based on a
misunderstanding of the rule.
Comment: In Sec. 44.110(a) add a new ``(6)'' to read: ``Subpart L:
Appeals.''
Response: This change was not made because it was not needed. In
(b)(5) ``our'' was changed to ``the Secretary's'' for clarity.
VIII. Comments on Part 47--Uniform Direct Funding and Support for
Bureau-Funded Schools
25 U.S.C. 2010 requires the Secretary to establish by regulation a
system for the direct funding and support of all Bureau-funded schools
that allots funds under 25 U.S.C. 2007. The existing rule in 25 CFR
39.50 adequately covered this issue and it was edited for plain
language with no substantive changes for the proposed rule. There are
no substantive changes to the final rule.
General Comments: Some commenters agreed with the proposed rules at
part 47. One commenter questioned the allocation percentage mentioned
in the Preamble to the proposed part 47.
Comment: Standardize use of terms ``local financial plan'' and
``local educational financial plan'' throughout part 47 by using
``local financial plan'' as in 25 U.S.C. 2010(b).
[[Page 22199]]
Response: We changed ``local financial plans'' to ``local
educational financial plans'' in part 47 for clarity.
Comment: Delete part 47 as unnecessary because part 47 ignores
grant schools, referring only to Bureau-operated and contract schools.
Response: We did not delete part 47 because part 47 is necessary to
describe uniform direct funding and support for Bureau-funded schools.
We changed the title of this part to add ``for Bureau-funded Schools.''
Comment: Change ``schools'' in part 47 to ``Bureau-operated
schools'' because Bureau-operated schools are the only schools required
to prepare local financial plans under the relevant statute, 25 U.S.C.
2010(b).
Response: We changed the title of part 47 to ``Uniform Direct
Funding and Support for Bureau-Operated Schools'' and changed all
references to schools in part 47 to ``Bureau-operated schools'' for
clarity. We deleted the definition of ``school'' in the definitions in
Sec. 47.2.
Comment: Change the October 1 date in Sec. 47.12 because 25 U.S.C.
2010(a)(2)(A)(i) states that funds shall become available July 1 of the
fiscal year for which funds are appropriated.
Response: We deleted in its entirety Sec. 47.12 on how funds are
obligated because it is unnecessary. 25 U.S.C. 2010(a)(2)(A)(i), the
Indian Affairs Manual, and 25 CFR part 900 cover the issue.
Comment: Change ``school boards'' to ``Bureau-operated school
boards'' in the definition of ``Consultation'' in part 47 because
Bureau-operated school boards are the only school boards required to
prepare local financial plans.
Response: We made the suggested change to add ``Bureau-operated''
before ``school boards.''
Comment: Add a definition of ``school board'' to refer only to
``Bureau-operated school board'' because only Bureau-operated school
boards are the only schools required to prepare local financial plans.
Response: We did not add a definition of ``school board'' because
we changed references to ``school board'' to ``Bureau-operated school
board'' for clarity.
Comment: Make dates consistent in Sec. 47.3 and Sec. 44.108 on
notification of funding.
Response: We made no change because there is no inconsistency.
Comment: Change ``all funds'' to ``80 per cent of the funds'' in
Sec. 47.4 to comply with 25 U.S.C. and change the reference to which
fiscal year funding is available from ``that fiscal year that begins on
the following October 1st'' to, ``for the fiscal year that began on the
preceding October 1'' because as written it implies that OIEP will
distribute funds before they are appropriated.
Response: We made the suggested change.
Comment: Change the question in Sec. 47.6 to refer to ``records of
local financial plans.''
Response: We did not make the suggested change because it was not
necessary for clarity.
Comment: Strike the reference to ``contract schools'' because
contract schools are not required to prepare local educational
financial plans.
Response: We deleted the reference to ``contract schools.'' We also
changed the requirement for certification from the ``Agency
Superintendent of Education'' to ``Education Line Officer'' to reflect
the current designation for that position.
IX. 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 this 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 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 Act, 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, Bureau 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.
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
[[Page 22200]]
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 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 tribes on a government-to-
government basis. The consultations have been open and candid to allow
the affected tribes to fully evaluate the potential effect of the rule
on trust resources.
(2) We have fully considered tribal views.
(3) We have consulted with the Office of Indian Education Programs
and the Office of the Assistant Secretary--Indian Affairs have been
consulted about the political effects of this rule on Indian tribes.
Paperwork Reduction Act
This rulemaking requires information collection from 10 or more
parties and a submission under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is required. Accordingly, the Department prepared
submissions on these collections for review and approval by OMB. Having
reviewed the Department's submissions, along with any comments that
were submitted by the reviewing public, OMB has approved the
information collection requirements contained in this rulemaking and
has assigned the OMB control number 1076-0163. In addition to this
number, the information collections in part 39 are also covered by OMB
control numbers 1076-0134 and 1076-0122.
The information collected will be used to enable the Bureau to
better administer Bureau-funded schools subject to this rulemaking. In
all instances, the Department has striven to lessen the burden on the
public and ask for only information essential to administering the
programs affected and to carrying out the Department's fiduciary
responsibility to federally recognized tribes. The public may make
additional comments on the accuracy of our burden estimates (which are
explained in detail in the preamble to the proposed rule published on
February 25, 2004, at 69 FR 8752) and any suggestions for reducing this
burden to the OMB Interior Desk Officer, Docket Number 1076-AE49,
Office of Information and Regulatory Affairs, 202/395-6566 (facsimile);
e-mail: [email protected].
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.
List of Subjects
25 CFR Parts 30, 37, 39, 44, and 47
Elementary and secondary education programs, Government programs--
education, Grant programs--Indians, Indians--education, Schools.
25 CFR Part 42
Elementary and secondary education programs, Indians--education,
Schools, Students.
Dated: April 20, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
0
For the reasons given in the preamble, the Bureau of Indian Affairs
amends parts 30, 37, 39, 42, 44, and 47 of title 25 of the Code of
Federal Regulations as follows:
0
1. New part 30 is added to subchapter E 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 Act require the Secretary of the 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 AYP?
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 the
Secretary'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?
[[Page 22201]]
Approval of Alternative Definition
30.113 How does the Secretary 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 annual measurable
objectives, what other methods may it use to determine whether it
made AYP?
Subpart C--Failure To Make Adequate Yearly Progress
30.117 What happens if a Bureau-funded school fails to make AYP?
30.118 May a Bureau-funded school present evidence of errors in
identification 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 Bureau-funded 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 it 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 is required for the Bureau to meet its reporting
responsibilities?
30.150 Information Collection.
Authority: Public Law 107-110, 115 Stat. 1425.
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?
Act means the No Child Left Behind Act, Public Law 107-110, enacted
January 8, 2002. The No Child Left Behind Act reauthorizes and amends
the Elementary and Secondary Education Act (ESEA) and amends the
Education Amendments of 1978.
Bureau means the Bureau of Indian Affairs in the Department of the
Interior.
Department means the Department of the Interior.
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.
Secretaries means the Secretary of the Interior and the Secretary
of Education.
Subpart A--Defining Adequate Yearly Progress
Sec. 30.102 Does the Act require the Secretary of the Interior to
develop a definition of AYP for Bureau-funded schools?
Yes, the Act requires the Secretary to develop a definition of AYP
through negotiated rulemaking. In developing the Secretary's definition
of AYP, the No Child Left Behind Negotiated Rulemaking Committee
(Committee) considered a variety of options. In choosing the definition
in Sec. 30.104, 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
definition 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 AYP?
The Secretary defines AYP as follows. The definition meets the
requirements in 20 U.S.C. 6311(b).
(a) Effective in the 2005-2006 school year, the academic content
and student achievement standards, assessments, and the definition of
AYP are those of the State where the school is located, unless an
alternative definition of AYP is proposed by the tribal governing body
or school board and approved by the Secretary.
(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,
academic content and student achievement standards, and definition of
AYP.
(3) The use of the State's definition of AYP does not diminish or
alter the Federal Government's trust 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 May 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 academic content and achievement
standards, assessments, and AYP. However, unless an alternative
definition is approved under Sec. 30.113, the school must use the
Secretary's definition of academic content and achievement standards,
assessments, and AYP.
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 meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-
200.20, taking into account the unique circumstances and needs of the
school or schools and the students served.
[[Page 22202]]
Sec. 30.107 What must a tribal governing body or school board include
in its alternative definition of AYP?
(a) An alternative definition of AYP must meet the requirements of
20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into
account the unique circumstances and needs of the school or schools and
the students served.
(b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR
200.13-200.20, an 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 and reading or language arts;
(5) Measure progress separately for reading or language arts and
for mathematics;
(6) Unless disaggregation of data cannot yield statistically
reliable information or reveals personally identifiable information,
apply the same annual measurable objectives to each of the following:
(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;
(7) Establish a starting point;
(8) Create a timeline to ensure that all students are proficient by
the 2013-2014 school year;
(9) Establish annual measurable objectives;
(10) Establish intermediate goals;
(11) Include at least one other academic indicator which, for any
school with a 12th grade, must be graduation rate; and
(12) Ensure that at least 95 percent of the students enrolled in
each group under Sec. 30.107(b)(6) are assessed.
(c) If a Bureau-funded school's alternative definition of AYP does
not use a State's academic content and student achievement standards
and academic assessments, the school must include with its alternative
definition the academic standards and assessment it proposes to use.
These standards and assessments must meet the requirements in 20 U.S.C.
6311(b) and 34 CFR 200.1-200.9.
Sec. 30.108 May an alternative definition of AYP use parts of the
Secretary's definition?
Yes, a tribal governing body or school board may take part of the
Secretary's definition and propose to waive the remainder. The proposed
alternative definition of AYP must, however, include both the parts of
the Secretary's AYP definition the tribal governing body or school
board is adopting 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 20 U.S.C. 7301.
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, the tribal governing body or
school board should request technical assistance before formally
notifying the Secretary of its intention to waive the Secretary's
definition of AYP.
Approval of Alternative Definition
Sec. 30.113 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 60 days of receiving a proposed alternative definition
of AYP, OIEP will notify the tribal governing body or the school board
of:
(1) Whether the proposed alternative definition is complete; and
(2) If the definition is complete, an estimated timetable for the
final decision.
(c) If the proposed alternative definition is incomplete, OIEP will
provide 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) The Secretaries will review the proposed alternative definition
of AYP to determine whether it is consistent with the requirements of
20 U.S.C. 6311(b). This review must take into account the unique
circumstances and needs of the schools and students.
(e) The Secretaries shall approve the alternative definition of AYP
if it is consistent with the requirements of 20 U.S.C. 6311(b), taking
into consideration the unique circumstances and needs of the school or
schools and the students served.
(f) If the Secretaries approve the alternative definition of AYP:
(1) The Secretary 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.
(g) The Secretaries will disapprove the alternative definition of
AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b).
If the alternative definition is disapproved, the tribal governing body
or school board will be notified of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not
meet the requirements of 20 U.S.C. 6311(b).
(h) If the Secretaries deny a proposed definition under paragraph
(g) of this section, they shall provide technical assistance to
overcome the basis for the denial.
[[Page 22203]]
Subpart B--Assessing Adequate Yearly Progress
Sec. 30.114 Which students must be assessed?
All students in grades three through eight and at least once in
grades ten through twelve 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 assessed pursuant to Sec.
30.114 must be included for purposes of AYP if the student is enrolled
in a Bureau-funded school for a full academic year as defined by the
Secretary or by an approved alternative definition of AYP.
Sec. 30.116 If a school fails to achieve its annual measurable
objectives, what other methods may it use to determine whether it made
AYP?
A school makes AYP if each group of students identified in Sec.
30.107(b)(6) meets or exceeds the annual measurable objectives and
participation rate identified in Sec. Sec. 30.107(b)(9) and
30.107(b)(12) respectively, and the school meets the other academic
indicators identified in Sec. 30.107(b)(11). If a school fails to
achieve its annual measurable objectives for any group identified in
Sec. 30.107(b)(6), there are two other methods it may use to determine
whether it made AYP:
(a) Method A--``Safe Harbor.'' Under ``safe harbor,'' the following
requirements must be met for each group referenced under Sec.
30.107(b)(6) that does not achieve the school's annual measurable
objectives:
(1) In each group that does not achieve the school's annual
measurable objectives, the percentage of students who were below the
``proficient'' level of academic achievement decreased by at least 10
percent from the preceding school year; and
(2) The students in that group made progress on one or more of the
other academic indicators; and
(3) Not less than 95 percent of the students in that group
participated in the assessment.
(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?
------------------------------------------------------------------------
Action required by
Number of yrs of failing to entity operating
make AYP in same academic Status school for the
subject following school year
------------------------------------------------------------------------
1st year of failing AYP....... No status change. Analyze AYP data and
consider
consultation with
outside experts.
2nd year of failing AYP....... School Develop a plan or
improvement, revise an existing
year one. plan for school
improvement in
consultation with
parents, school
staff and outside
experts.
3rd year of failing AYP....... School Continue revising or
Improvement, modifying the plan
year two. for school
improvement in
consultation with
parents, school
staff and outside
experts.
4th year of failing AYP....... Corrective Action Implement at least
one of the six
corrective actions
steps found in 20
U.S.C.
6316(b)(7)(C)(iv).
5th year of failing AYP....... Planning to Prepare a
Restructure. restructuring plan
and make
arrangements to
implement the plan.
6th year of failing AYP....... Restructuring.... Implement the
restructuring plan
no later than the
beginning of the
school year
following the year
in which it
developed the plan.
7th year (and beyond) of Restructuring.... Continue
failing AYP. implementation of
the restructuring
plan until AYP is
met for two
consecutive years.
------------------------------------------------------------------------
Sec. 30.118 May a Bureau-funded school present evidence of errors in
identification 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 on which the bureau would identify a school for improvement,
and present evidence as set out in 20 U.S.C. 6316(b)(2).
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.
(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 offering school
choice and supplemental educational services when identified for school
improvement, corrective action, and restructuring?
Yes, Bureau-funded schools are exempt from offering public school
choice and supplemental educational 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' responsibilities under 20 U.S.C. 6316(b). 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 under title I, part A of the Act, for any school below the
level for the preceding year. To the extent that reserving funds under
this section would reduce the title I, part A dollar amount of any
school
[[Page 22204]]
below the amount of title I, part A dollars the school received the
previous year, the Secretary is authorized to reduce the title I, part
A allocations of those schools receiving an increase in the title I,
part A funds over the previous year to create the 4 percent reserve.
This section does not authorize a school to receive title I, part A
dollars it is not otherwise eligible to receive.
(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 20 U.S.C. 6316(b)(4)
and 20 U.S.C. 6316(g)(3) .
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 Bureau apply for funds that are available to
help schools that fail to meet AYP?
Yes, 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, 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 is required for the Bureau to meet its 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 20 U.S.C. 6316(g)(5).
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 1076-0163.
0
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 definitions apply to the terms in this part?
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: Public Law 107-110, 115 Stat. 1425.
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 definitions apply to the terms in this part?
Act means the No Child Left Behind Act, Public Law 107-110, enacted
January 8, 2002. The No Child Left Behind Act reauthorizes and amends
the Elementary and Secondary Education Act (ESEA) and the amended
Education Amendments of 1978.
Bureau means the Bureau of Indian Affairs in the Department of the
Interior.
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).
[[Page 22205]]
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 1076-0163.
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 ISEP-eligible students, residing within the tribe's
jurisdiction, to receive transportation funding to attend schools
outside the geographic attendance area in which the student lives; and
(c) Authorize tribal member students who are ISEP-eligible and are
not residing within the tribe's jurisdiction to receive transportation
funding to attend schools outside the student's geographic attendance
area.
Sec. 37.112 Must each school have a geographic attendance boundary?
Yes. The Secretary must ensure that each school has a geographic
attendance area boundary.
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.
PART 39--THE INDIAN SCHOOL EQUALIZATION PROGRAM
0
3. The authority citation for part 39 is revised to read as follows:
Authority: 25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat.
1425.
0
4. In part 39, subparts A through H are revised to read as follows:
Subpart A--General
Sec.
39.1 What is the purpose of this part?>
39.2 What definitions apply to terms 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 academic 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
disabilities?
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 student
and/or school 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?
[[Page 22206]]
39.114 What characteristics may qualify a student as gifted and
talented for purposes of supplemental funding?
39.115 How are eligible gifted and talented 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 gifted and talented 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?
39.145 Can a school receive both a small school adjustment and a
small high school adjustment?
39.146 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?
39.203 When does OIEP calculate a school's allotment?
39.204 How does OIEP calculate ADM?
39.205 How does OIEP calculate a school's total WSUs for the school
year?
39.206 How does OIEP calculate the value of one WSU?
39.207 How does OIEP determine a school's funding for the school
year?
39.208 How are ISEP funds distributed?
39.209 When may a school count a student for membership purposes?
39.210 When must a school drop a student from its membership?
39.211 What other categories of students can a school count for
membership purposes?
39.212 Can a student be counted as enrolled in more than one school?
39.213 Will the Bureau fund children being home schooled?
39.214 What is the minimum number of instructional hours required in
order to be considered a full-time educational program?
39.215 Can a school receive funding for any part-time students?
Residential Programs
39.216 How does ISEF fund residential programs?
39.217 How are students counted for the purpose of funding
residential services?
39.218 Are there different formulas for different levels of
residential services?
39.219 What happens if a residential program does not maintain
residency levels required by this subpart?
39.220 What reports must residential programs submit to comply with
this rule?
39.221 What is a full school month?
Phase-in Period
39.230 How will the provisions of this subpart be phased in?
Subpart D--Accountability
39.401 What is the purpose of this subpart?
39.402 What definitions apply to terms used in this subpart?
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 subpart?
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 schools carry over contingency funds to a subsequent
fiscal year?
39.505 What are the reporting requirements for the use of the
contingency fund?
Subpart F--School Board Training Expenses
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?
39.603 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--Student Transportation
39.700 What is the purpose of this subpart?
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 to receive chaperone expenses to
transport residential students?
39.705 Are schools eligible for transportation funds to transport
special education students?
39.706 Are peripheral dormitories eligible for day transportation
funds?
39.707 Which student transportation expenses are currently not
eligible for Student Transportation Funding?
39.708 Are miles generated by non-ISEP eligible students 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, on-
reservation boarding schools and peripheral dormitory 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?
[[Page 22207]]
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 (SUIV) 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 to this subpart?
39.809 Information collection.
Subpart A--General
Sec. 39.1 What is the purpose of this part?
This part provides for the uniform direct funding of Bureau-
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 definitions apply to terms in this part?
Act means the No Child Left Behind Act, Public Law 107-110, enacted
January 8, 2002. The No Child Left Behind Act reauthorizes and amends
the Elementary and Secondary Education Act (ESEA) and the amended
Education Amendments of 1978.
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.
At no cost means provided without charge, but does not preclude
incidental fees normally charged to non-disabled students or their
parents as a part of the regular education program.
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.
Basic program means the instructional program provided to all
students at any age level exclusive of any supplemental programs that
are not provided to all students in day or boarding schools.
Basic transportation miles means the daily average of all bus miles
logged for round trip home-to-school transportation of day students.
Bureau means the Bureau of Indian Affairs in the Department of the
Interior.
Bureau-funded school means
(1) Bureau school;
(2) A contract or grant school; or
(3) A school for which assistance is provided under the Tribally
Controlled Schools Act of 1988.
Bureau school means a Bureau-operated elementary or secondary day
or boarding school or a Bureau-operated dormitory for students
attending a school other than a Bureau school.
Count Week means the last full week in September during which
schools count their student enrollment for ISEP purposes.
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.
Limited English Proficient (LEP) means a child from a language
background other than English who needs language assistance in his/her
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 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.
Physical education means the development of physical and motor
fitness, fundamental motor skills and patterns, and skills in aquatics,
dance, and individual and group games and sports (including intramural
and lifetime sports). The term includes special physical education,
adapted physical education, movement education, and motor development.
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 or another
Bureau-funded school.
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 or
Bureau-funded school; 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
[[Page 22208]]
board in a boarding school or a dormitory.
Secretary means the Secretary of the Interior or a designated
representative.
School means a school funded by the Bureau of Indian Affairs. The
term ``school'' does not include public, charter, or private schools.
School bus means a passenger vehicle that is:
(1) Used to transport day students to and/or from home and the
school; and
(2) Operated by an operator in the employ of, or under contract to,
a Bureau-funded school, who is qualified to operate such a vehicle
under Tribal, State or Federal regulations governing the transportation
of students.
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.
Special education means:
(1) Specially designed instruction, at no cost to the parents, to
meet the unique needs of a child with a disability, including:
(i) Instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the
requirements of paragraph (1) of this definition:
(i) Speech-language pathology services, or any other related
service, if the service is considered special education rather than a
related service under State standards;
(1) Travel training; and
(2) Vocational education.
Specially designed instruction means adapting, as appropriate, to
the needs of an eligible child under this part, the content,
methodology, or delivery or instruction:
(1) To address the unique needs of the child that result from the
child's disability; and
(2) To ensure access of the child to the general curriculum, so
that he or she can meet the educational standards within the
jurisdiction of the public agency that apply to all children
Three-year average means:
(1) For academic programs, the average daily membership of the 3
years before the current year of operation; and
(2) For the residential programs, the count period membership of
the 3 years before the current year of operation.
Travel training means providing instruction, as appropriate, to
children with significant cognitive disabilities, and any other
children with disabilities who require this instruction, to enable them
to:
(1) Develop an awareness of the environment in which they live; and
(2) Learn the skills necessary to move efficiently and safely from
place to place within that environment (e.g., in school, in the home,
at work, and in the community).
Tribally operated school means an elementary school, secondary
school, or dormitory that receives financial assistance for its
operation under a contract, grant, or agreement with the Bureau under
section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the
Tribally Controlled Schools Act of 1988.
Vocational education means organized educational programs that are
directly related to the preparation of individuals for paid or unpaid
employment, or for additional preparation for a career requiring other
than a baccalaureate or advanced degree.
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 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This part contains in
Sec. Sec. 39.410 and 39.502 collections of information subject to the
PRA. These collections have been approved by OMB under control number
1076-0163.
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 academic base funding?
Academic base funding is the ADM times the weighted student unit.
Sec. 39.103 What are the factors used to determine base funding?
To determine base funding, schools must use the factors shown in
the following table. The school must apply the appropriate factor to
each student for funding purposes.
------------------------------------------------------------------------
Base Base
academic residential
Grade level funding funding
factor factor
------------------------------------------------------------------------
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 disabilities?
(a) Each school must provide for students with disabilities 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 needs of students with disabilities under the National Criteria for
Home-Living Situations.
(b) A school may spend all or part of the 15 percent academic base
funding reserved under paragraph (a)(1) of this section on school-wide
programs to benefit all students (including those without disabilities)
only if the school can document that it has met all needs of students
with disabilities with such funds, and after having done so, there are
unspent funds remaining from such funds.
Sec. 39.105 Are additional funds available for special education?
(a) Schools may supplement the 15 percent base academic funding
reserved under Sec. 39.104 for special education with funds available
under part B of the Individuals with Disabilities Education Act (IDEA).
To obtain part B funds, the
[[Page 22209]]
school must submit an application to OIEP. IDEA funds are available
only if the school demonstrates that funds reserved under Sec.
39.104(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 staff 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
student and/or school costs?
Yes, schools are allotted supplemental funds for special student
and/or school costs. ISEF provides additional funds to schools through
add-on weights (called special cost factors). ISEF adds special cost
factors as shown in the following table.
------------------------------------------------------------------------
Cost Factor For more information see
------------------------------------------------------------------------
Gifted and talented students.............. Sec. Sec. 39.110 through
39.121
Students with language development needs.. Sec. Sec. 39.130 through
39.137
Small school size......................... Sec. Sec. 39.140 through
39.156
Geographic isolation of the school........ Sec. 39.160
------------------------------------------------------------------------
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 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 What characteristics may qualify a student as gifted and
talented for purposes of supplemental funding?
To be funded as gifted and talented under this part, a student must
be identified as gifted and talented 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 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 gifted and talented students identified
and nominated?
(a) Screening can be completed annually to identify potentially
eligible students. A student may be nominated for gifted and talented
designation using the criteria in Sec. 39.114 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) The student 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 student'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.
[[Page 22210]]
(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 reevaluated at least every 3 years through the 10th grade to verify
eligibility for funding.
(b) If a school identifies a student as gifted and talented based
on Sec. 39.114 (d) or (e), 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.
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 20
U.S.C. 6311(b)(1).
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 Indian or Native languages, the factor to
support the language development program will be no more than 0.25 WSU.
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:
[[Page 22211]]
(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 than 100 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 component
ADM of high school component Amount of small high small school
school adjustment adjustment under
Sec. 39.141
------------------------------------------------------------------------
50 or fewer students.......... 6.25 base WSU......... Yes.
51 to 99 students............. determined using the Yes.
following formula:
WSU = ((100-X)/200)*X/
2.
50 or fewer students.......... 12.5 base WSU......... No.
51 to 99 students............. determined using the No.
following formula:
WSU = ((100-X)/200)*X.
------------------------------------------------------------------------
Sec. 39.145 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 Small high
ADM--entire school school Small school school Total
component adjustment adjustment adjustment
----------------------------------------------------------------------------------------------------------------
1-50............................................ NA 12.5 NA 12.5
1-50............................................ 1-50 12.5 6.25 18.75
51-99........................................... 1-50 \2\ 12.5-0.5 6.25 18.75-6.75
51-99........................................... 51-99 \1\ 12.5-0.5 \2\ 6.25-0.25 18.75-0.7
99.............................................. 1-50 0.5 12.5 12.5
99.............................................. 51-99 0.5 \2\ 12.5-0.5 12.5-0.5
----------------------------------------------------------------------------------------------------------------
\1\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
the formula in Sec. 39.141.
\2\ 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. 39.146 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 12.5.
fewer ISEP-eligible students.
Residential student count of between 51 Determined by the formula ((100-
and 99 ISEP-eligible students. 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
[[Page 22212]]
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 current year of operation; and
(2) For the residential programs, the count period membership of
the 3 years before the current year of operation.
Sec. 39.203 When does OIEP calculate a school's allotment?
OIEP calculates a school's allotment no later than July 1. Schools
must submit final ADM enrollment figures no later than June 15.
Sec. 39.204 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. 39.205 How does OIEP calculate a school's total WSUs for the
school year?
(a) OIEP will add the weights obtained from the calculations in
paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the
total weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted
student unit for each grade level;
(2) Calculate any supplemental WSUs generated by the students; and
(3) Calculate any supplemental WSUs generated by the schools.
(b) The total WSU for the school year is the sum of paragraphs
(a)(1), (a)(2), and (a)(3) of this section.
Sec. 39.206 How does OIEP calculate the value of one WSU?
(a) 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.
(b) To calculate the average WSU for a 3-year period:
(1) Step 1. Add together each year's total WSU (calculated under
paragraph (b) of this section); and
(2) Step 2. Divide the sum obtained in step 1 by 3.
Sec. 39.207 How does OIEP determine a school's funding for the school
year?
To determine a school's funding for the school year, OIEP uses the
following seven-step process:
(a) Step 1. Multiply the appropriate base academic and/or
residential weight from Sec. 39.103 by the number of students in each
grade level category.
(b) Step 2. Multiply the number of students eligible for
supplemental program funding under Sec. 39.107 by the weights for the
program.
(c) Step 3. Calculate the school-based supplemental weights under
Sec. 639.107.
(d) Step 4. Add together the sums obtained in steps 1 through 3 to
obtain each school's total WSU.
(e) Step 5. Add together the total WSUs for all Bureau-funded
schools.
(f) Step 6. Calculate the value of a WSU by dividing the current
school year's funds by the average total WSUs as calculated under step
5 for the previous 3 years.
(g) Step 7. Multiply each school's WSU total by the base value of
one WSU to determine funding for that school.
Sec. 39.208 How are ISEP funds distributed?
(a) On July 1, schools will receive 80 percent of their funds as
determined in Sec. 39.207.
(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. 39.209 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 and shall be counted for
ADM purposes. The first 10 days of school, for purposes of this
section, are determined by the calendar that the school submits to
OIEP.
(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. 39.210 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. 39.211 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
Type of student 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 documentations
is on file at the school.
(b) Located in an institutional setting The school is either:
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 the The student is both:
school day. (1) Concurrently enrolled in,
and receiving credits for both
the school's courses and
college courses; and
(2) In physical attendance at
the school at least 3
documented contact hours per
day.
(d) Taking distance learning courses... The student is both:
(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) Taking the courses at the
school site under a teacher's
supervision.
------------------------------------------------------------------------
[[Page 22213]]
Sec. 39.212 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 39.209.
Sec. 39.213 Will the Bureau fund children being home schooled?
No, the Bureau will not fund any child that is being home schooled.
Sec. 39.214 What is 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. 39.215 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. 39.216 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' residential WSUs.
Sec. 39.217 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 was:
(a) In residence at least one night during the first full week of
October;
(b) In residence at least one night during the week preceding the
first full week in October;
(c) In residence at least one night during the week following the
first full week in October; and
(d) Present for both the after school count and the midnight count
at least one night during each week specified in this section.
Sec. 39.218 Are there different formulas for different levels of
residential services?
(a) Residential services are funded as shown in the following
table:
------------------------------------------------------------------------
Each student is funded at
If a residential program operates . . . 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. 39.219 What happens if a residential program does not maintain
residency levels required by this subpart?
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. 39.220 What reports must residential programs submit to comply
with this subpart?
Residential programs must report their monthly counts to the
Director on the last school day of the month. To be counted, a student
must have been in residence at least 10 nights during each full school
month.
Sec. 39.221 What is a full school month?
A full school month is each 30-day period following the first day
that residential services are provided to students based on the school
residential calendar.
Phase-in Period
Sec. 39.230 How will the provisions of this subpart be phased in?
The calculation of the three-year rolling average of ADM for each
school and for the entire Bureau-funded school system will be phased-in
as shown in the following table.
------------------------------------------------------------------------
Time period How OIEP must calculate ADM
------------------------------------------------------------------------
(a) First school year after May 31, Use the prior 3 years' count
2005. period to create membership
for funding purposes
(b) Second school year after May 31, (1) The academic program will
2005. use the previous year's ADM
school year and the 2 prior
years' count periods; and
(2) The residential program
will use the previous year's
count period and the 2 prior
years' count weeks
(c) Each succeeding school year after Add one year of ADM or count
May 31, 2005. period and drop one year of
prior count weeks until both
systems are operating on a 3-
year rolling average using the
previous 3 years' count after
period or ADM, respectively.
------------------------------------------------------------------------
Subpart D--Accountability
Sec. 39.401 What is the purpose of this subpart?
The purpose of this subpart is to ensure accountability of
administrative officials by creating procedures that are systematic and
can be verified by a random independent outside auditing procedures.
These procedures will ensure the equitable distribution of funds among
schools.
Sec. 39.402 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.
[[Page 22214]]
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 required by subpart G of this part 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 homebound services,
institutional 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. 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.
[[Page 22215]]
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
subpart?
(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 applicable appeals process in 25 CFR part 2 or 25 CFR part
900, subpart L.
Subpart E--Contingency Fund
Sec. 39.500 What emergency and contingency funds are available?
The Secretary:
(a) Must reserve 1 percent of funds from the allotment formula to
meet emergencies and unforeseen contingencies affecting educational
programs;
(b) Can carry over to the next fiscal year a maximum of 1 percent
the current year funds; and
(c) May distribute all funds in excess of 1 percent equally to all
schools or distribute excess as a part of ISEP.
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 is not covered by an insurance policy in force at the time
of the event;
(d) The Assistant Secretary determines that Bureau cannot reimburse
the emergency from the facilities emergency repair fund; and
(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 schools carry over contingency funds 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, Bureau/OIEP shall send an
annual report to Congress detailing how the Contingency Funds were used
during the previous fiscal year.
(b) 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 in Sec.
39.600.
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, provided that such training is recommended, but is not
required, for a tribal governing body that serves in the capacity of a
school board.
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--Student Transportation
Sec. 39.700 What is the purpose of this subpart?
(a) This subpart 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.
Transportation mileage count week means the last full week in
September.
Unimproved roads means unengineered earth roads that do not
[[Page 22216]]
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 to receive chaperone expenses to
transport residential students?
Yes. 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 transportation funds to
transport special education students?
Yes. 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 expenses are currently not
eligible for Student Transportation Funding?
(a) The following transportation expenses are currently not
eligible for transportation funding, however the data will be collected
under the provisions in this subpart:
(1) Fuel and maintenance runs;
(2) Transportation home for medical or other emergencies;
(3) Transportation from school 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 miles generated by non-ISEP eligible students
eligible for transportation funding?
No. Only miles generated by ISEP-eligible students enrolled in and
attending a school are eligible for student transportation funding.
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 transportation
mileage count week, W = Miles driven on Wednesday of the transportation
mileage count week, and Th = Miles driven on Thursday of the
transportation mileage count week.
(a) For ISEP-eligible day students whose route is entirely over
improved roads, calculate miles using the following formula:
[GRAPHIC] [TIFF OMITTED] TR28AP05.087
(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] TR28AP05.088
(2) Step 2. Apply the following formula to miles driven over
unimproved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.089
(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 used to transport students from their homes to the
school. 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 sum of the
mileage from paragraphs (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 39.722.
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 following
information:
(1) Fixed vehicle costs, including: the number and type of buses,
passenger
[[Page 22217]]
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 sites of special services, and to extra-curricular
activities;
(4) Medical trips;
(5) Maintenance and Service costs; and
(6) Driver costs;
(7) All expenses referred to in Sec. 39.707.
Sec. 39.722 What transportation information must day schools, on-
reservation boarding schools and peripheral dormitory schools report?
(a) By August 1 of each year, all schools and peripheral dorms that
provide transportation must submit a report that covers the preceding
year. This report must include:
(1) Fixed vehicle costs and other 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 sites of special services, and to extra-curricular
activities;
(4) Mileage driven for student medical trips;
(5) Costs of vehicle maintenance and service cost, including cost
of miles driven to obtain maintenance and service;
(6) Driver costs; and
(7) All expenses referred to in Sec. 39.707.
(b) In addition, all day schools and on-reservation boarding
schools must include in their report a Day Student Transportation Form
signed and certified as complete and accurate by the School Principal
and the appropriate ELO.
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 and State
or Tribal 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 funds based on the types of
transportation 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 minimum 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 per
student.
(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 pro
rate funds distributed to schools using the Indian School Equalization
Formula.
Sec. 39.802 What is the student unit value in the formula?
The student unit value is the dollar 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
student enrolled in an instructional program. 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 grades 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.
Department of Education-National Center of Education Statistics (NCES)
for the last school year for which data is available.
(b) Step 2. Subtract the average specific Federal share per student
(title I part A 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 per student as a percentage of the total
revenue (current expenditures) of Bureau-funded schools from the last
year data is available.
(d) Step 4. Subtract the day transportation revenue per student as
a percentage of the total revenue (current revenue) Bureau-funded
schools for the last school year for which data is available.
(e) Step 5. Add Johnson O'Malley funding. (See the table, in Sec.
39.805)
Sec. 39.805 What was the student unit for instruction value (SUIV)
for the school year 1999-2000?
The process described in Sec. 39.804 is illustrated in the table
below, using figures for the 1999-2000 school year:
[[Page 22218]]
Step 1.......................................... $8,030 ANACE.
Step 2.......................................... -1205 Average specific Federal share of total revenue
for Bureau-funded schools.
Step 3.......................................... -993 Cost grant/technical services revenue as a
percentage total revenue.
Step 4.......................................... -658 Transportation revenue as a percentage of the
total revenue.
Step 5.......................................... 85 Johnson O'Malley funding.
�������������������������������������������������
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 the Association of
Boarding Schools.
(b) Applying 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 instructional value (SUIV) and the student
unit residential value (SURV) will be adjusted annually to derive the
current year Student Unit Value (SUV) by dividing the calculated SUIV
and the SURV into two parts and adjusting each one as shown in this
section.
(1) The first part consists of 85 percent of the calculated SUIV
and the SURV. OIEP will adjust this portion using the personnel cost of
living increase of the Department of Defense schools for each year.
(2) The second part consists of 15 percent the calculated SUIV and
the SURV. 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 to this subpart?
Adjusted National Average Current Expenditure [ANACE] means the
actual current expenditures for pupils in fall enrollment in public
elementary and secondary schools for the last school year for which
data is available. These expenditures are adjusted annually to reflect
current year expenditures of federally financed schools' cost of day
and residential programs.
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.
Sec. 39.809 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. 39.410 and
39.502. These collections have been approved by OMB under control
numbers 1076-0122, 1076-0134, and 1076-0163.
0
5. 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 When does due process require a formal disciplinary hearing?
42.7 What does due process in a formal disciplinary proceeding
include?
42.8 What are a student's due process rights in a formal
disciplinary proceeding?
42.9 What are victims' rights in formal disciplinary proceedings?
42.10 How must the school communicate individual student rights to
students, parents or guardians, and staff?
42.11 Information collection.
Authority: 5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.
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.
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. 42.4 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. 42.7 consistent with the due
process rights described in Sec. 42.7.
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:
[[Page 22219]]
(1) Sending an e-mail to: [email protected]; 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 Act 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. 42.8.
Sec. 42.6 When does due process require a formal disciplinary
hearing?
Unless local school policies and procedures provide for less, a
formal disciplinary hearing is required before a suspension in excess
of 10 days or expulsion.
Sec. 42.7 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 related to the alleged 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 Act 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;
(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. 42.8 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 the record of the disciplinary action, including
written findings of fact and conclusions;
(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. 42.9 What are victims' rights in formal disciplinary
proceedings?
In formal disciplinary proceedings, each school must consider
victims' rights when appropriate.
(a) The victim's rights may include a right to:
(1) Participate in disciplinary proceedings 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,
not his or her parents or guardians.
Sec. 42.10 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. 42.11 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 in Sec. Sec.
42.6, 42.7, and 42.9 contains collections of information subject to the
PRA. These collections have been approved by OMB under control number
1076-0163.
0
6. 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 can a grant be terminated?
44.105 How does a tribal governing body retrocede a program to the
Secretary?
44.106 How can the Secretary revoke an eligibility determination?
44.107 Under what circumstances may the Secretary reassume a
program?
44.108 How must the Secretary make grant payments?
44.109 What happens if the grant recipient is overpaid?
[[Page 22220]]
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?
44.112 Information Collection
Authority: Public Law 107-110, Title 10, Part D, the Native
American Education Improvement Act, 115 Stat. 2007; Part B, Section
1138, Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.
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 Tribally Controlled Schools Act;
(b) The regulations in this part; and
(c) 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 25 U.S.C. 450 et seq.;
(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;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by the Secretary.
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 notifies 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 25 U.S.C. 450 et seq.; and
(2) If the tribal 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:
(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; and
(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 25 U.S.C. 450 et seq. or operate the program
directly.
Sec. 44.107 Under what circumstances may the Secretary reassume a
program?
The Secretary may only reassume a program in compliance with 25
U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board
shall have a right to appeal the reassumption pursuant to 25 CFR part
900, subpart L.
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
the final determination that overpayment occurred.
(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 25 CFR part 900 apply to grants
under the Tribally Controlled Schools Act.
(1) Subpart F; Standards for Tribal or Tribal Organization
Management Systems, Sec. 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 the Secretary's denial or failure to act
on a request for facilities funds.
[[Page 22221]]
Sec. 44.111 Does the Federal Tort Claims Act apply to grantees?
Yes, the Federal Tort Claims Act applies to grantees.
Sec. 44.112 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 in Sec.
44.105 contains collections of information subject to the PRA. These
collections have been approved by OMB under control number 1076-0163.
0
7. New Part 47 is added to subchapter E to read as follows:
PART 47--UNIFORM DIRECT FUNDING AND SUPPORT FOR BUREAU-OPERATED
SCHOOLS
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 Bureau-operated 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 Information collection.
Authority: Pub. L. 107-110, 115 Stat. 1425.
Sec. 47.1 What is the purpose of this part?
This part contains the requirements for developing local
educational financial plans that Bureau-operated schools need in order
to receive direct funding from the Bureau of Indian Affairs under
section 1127 of the Act.
Sec. 47.2 What definitions apply to terms in this part?
Act means the No Child Left Behind Act, Public Law 107-110, enacted
January 8, 2002. The No Child Left Behind Act reauthorizes and amends
the Elementary and Secondary Education Act (ESEA) and the amended
Education Amendments of 1978.
Budget means that element in the local educational financial plan
which shows all costs of the plan by discrete programs and sub-cost
categories.
Bureau means the Bureau of Indian Affairs in the Department of the
Interior.
Consultation means soliciting and recording the opinions of Bureau-
operated 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.
Secretary means the Secretary of the Interior or a designated
representative.
Sec. 47.3 How does a Bureau-operated school find out how much funding
it will receive?
The Office of Indian Education Programs (OIEP) will notify each
Bureau-operated school in writing of the annual funding amount it will
receive as follows:
(a) No later than July 1 OIEP will let the Bureau-operated school
know the amount that is 80 percent of its funding; and
(b) No later than September 30 OIEP will let the Bureau-operated
school know the amount of the remaining 20 percent.
Sec. 47.4 When does OIEP provide funding?
By July 1 of each year OIEP will make available for obligation 80
percent of the funds for the fiscal year that begins on the following
October 1.
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 Bureau-operated school spends funds in
accordance with the local educational 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 educational financial plan;
(d) Recommend changes in budget amounts to carry out the local
educational 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 Bureau-operated 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:
(1) Certification by the chairman of the school board that the plan
has been ratified in an action of record by the board; and
(2) Certification by the Education Line Officer that he or she has
approved the plan as shown in an action overturning
[[Page 22222]]
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
educational financial plan:
(1) Within 15 days after receiving the tentative allotment, the
school supervisor must consult with the local school board on the local
educational financial plan.
(2) Within 30 days of receiving the tentative allotment, the school
board must review the local educational 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 educational 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 Bureau-operated 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 Bureau-operated school may use funds that it receives under this
part as matching funds for other Federal programs.
Sec. 47.12 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 contains
collections of information subject to the PRA in Sec. Sec. 47.5, 47.7,
47.9, and 47.10. These collections have been approved by OMB under
control number 1076-1063.
[FR Doc. 05-8256 Filed 4-27-05; 8:45 am]
BILLING CODE 4310-02-P