[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Rules and Regulations]
[Pages 38585-38592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14094]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 41

[167A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF08


Grants to Tribal Colleges and Universities and Din[eacute] 
College

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Education is updating its regulations 
governing grants to Tribal colleges and universities and Din[eacute] 
College. The Tribally Controlled Colleges and Universities Assistance 
Act of 1978, as amended (TCCUA), authorizes Federal assistance to 
institutions of higher education that are formally controlled or have 
been formally sanctioned or chartered by the governing body of an 
Indian Tribe or Tribes. The Navajo Community College Assistance Act of 
1978, as amended (NCCA) authorizes Federal assistance to the Navajo 
Nation in construction, maintenance, and operation of Din[eacute] 
College. This final rule would update implementing regulations in light 
of amendments to the TCCUA and the NCCA.

DATES:  This rule is effective July 14, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Juanita Mendoza, Acting Chief of 
Staff, Bureau of Indian Education (202) 208-3559.

SUPPLEMENTARY INFORMATION: 
I. Background
II. The Rule's Changes to the Current Regulations
III. Comments Received on the Proposed Rule and Responses to 
Comments
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation with Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Drafting Information

I. Background

    The TCCUA authorizes grants for operating and improving Tribal 
colleges and universities to insure [sic] continued and expanded 
educational opportunities for Indian students and to allow for the 
improvement and expansion of the physical resources of such 
institutions. See, 25 U.S.C. 1801 et seq. The TCCUA also authorizes 
grants for the encouragement of endowment funds for the operation and 
improvement of Tribal colleges and universities. The NCCA authorizes 
grants to the Navajo Nation to assist in the construction, maintenance 
and operation of Din[eacute] College. See 25 U.S.C. 640a et seq.
    In 1968, the Navajo Nation created the first Tribal college, now 
called Din[eacute] College--and other Tribal colleges quickly followed 
in California, North Dakota, and South Dakota. Today, there are 37 
Tribal colleges in 17 states. The Tribally controlled institutions were 
chartered by one or more Tribes and are locally managed.
    Tribal colleges generally serve geographically isolated 
populations. In a relatively brief period of time, they have become 
essential to educational opportunity for American Indian students. 
Tribal colleges are unique institutions that combine personal attention 
with cultural relevance, in such a way as to encourage American 
Indians--especially those living on reservations--to overcome barriers 
to higher education.

II. The Rule's Changes to the Current Regulations

    The regulations at 25 CFR part 41 were originally published in 
1979. Since the Tribally Controlled Community College Assistance Act of 
1978 (Pub. L. 95-471, Title I) was enacted on October 17, 1978, over 30 
years of amendments to the Act have been made. These include Public Law 
98-192 (December 1, 1983), Public Law 99-428 (September 30, 1996), 
Public Law 105-244 (October 7, 1998), and Public Law 110-315 (August 
14, 2008). Similarly, the Navajo Community College Assistance Act of 
1978 (Pub. L. 95-471, Title II) was amended by Public Law 110-315 
(August 14, 2008). This final rule incorporates updates required by 
those amendments. Specifically, the final rule:
     Makes ``plain language'' revisions under Executive Order 
12866 and 12988 and by the Presidential Memorandum of June 1, 1998;
     Updates institutional names (e.g., changing ``Director, 
Office of Indian Education Programs'' to ``Director of the Bureau of 
Indian Education'');
     Adds statutory authorities and makes accompanying 
statutory updates; and
     Combines the purpose, scope, and definitions into a new 
subpart A.

[[Page 38586]]

    Significant changes the final rule makes include clarifying that: 
(1) The calculation of an Indian Student Count (ISC) only includes 
students making satisfactory progress, as defined by the Tribal 
college, towards a degree or certificate; (2) no credit hours earned by 
a high school student that will be used towards the student's high 
school degree or its equivalent are included in the ISC; and (3) 
grantees may exclude high school students for the purpose of 
calculating the total number of full-time equivalent students. Changes 
clarify often misunderstood requirements for an ISC and when high 
school students cannot be counted towards an ISC. The final rule also 
updates definitions per amended legislation; reorganizes and clarifies 
institutional grant eligibility, grant application procedures, 
Department of the Interior (DOI) grant reporting requirements, and 
essential information for determining Indian student eligibility. 
Presently, information is embedded in extended definitions and is 
difficult to find; the changes increase accessibility and correct 
outdated language and requirements.
    The final rule makes several terminology changes throughout to 
reflect statutory language. These include replacing ``Tribally 
controlled community colleges'' with ``Tribal colleges and 
universities,'' replacing ``Navajo Community College'' with 
``Din[eacute] College,'' and replacing ``feasibility'' with 
``eligibility'' in appropriate places. A detailed table listing changes 
from the current rule to the final rule can be referenced in the 
publication of the proposed rule, 80 FR 49946 (August 18, 2015) because 
there have been no significant changes from the proposed to the final 
version of this rule.

III. Comments Received on the Proposed Rule and Responses to Comments

    The BIE received one written comment and five oral comments. The 
following summarizes the comments received and our responses.

A. Definitions (41.3)

    One commenter stated a concern that limiting the calculation of ISC 
to only include students making satisfactory progress would lead to a 
decrease in funding that could be used to help the very students who 
need it. The final rule indicates satisfactory progress is defined by 
the Tribal college or university. Tribal colleges and universities have 
accreditation requirements set by a nationally recognized accrediting 
agency or association determined by the U.S. Secretary of Education. 
Therefore, each Tribal college or university sets the requirements to 
meet satisfactory progress towards a degree or certificate.
    A commenter asked why the proposed rule failed to include a 
definition of ``unused portion of received funds''. The final rule 
details how the Tribal college or university reports how much funds 
remain unspent and how the BIE will reallocate the unspent funds, 
incorporating the definition. See 25 CFR 41.33.

B. Indian Student Count (41.5)

    Three comments addressed how ISC is determined. The first comment 
noted there is a reduction in time for counting Full-Time Equivalents 
(FTEs) from the first six weeks to the first three weeks of the 
semester, and asked what implications this would have on Tribal 
colleges and universities that have an add/drop deadline after the 
first three-weeks. The final rule, implementing an explicit requirement 
at 25 U.S.C. 1801(b)(1), requires ISC to be calculated on the basis of 
Indian students who are registered at the conclusion of the third week.
    The second comment noted there is inconsistency throughout the 
regulation with the use of the term ``students'' and requested 
clarification as to whether the student is Native or non-Native. The 
definition of ``Indian student'' includes a student who is a member of 
an Indian Tribe or a biological child of a living or deceased member of 
an Indian Tribe. See 25 U.S.C. 1801(a)(7); 25 CFR 41.3. The final rule 
replaces ``student'' with ``Indian student'' where applicable to 
clarify that the provisions address Indian students only. See, e.g., 25 
CFR 41.5.
    The third comment asked about whether online students are included 
in the ISC calculation and whether those students must also be Indian 
students. The final rule includes distance learning students who 
otherwise meet the definition of ``Indian student'' in the ISC count. 
See 25 CFR 41.5. The final rule's definition of ``Indian student'' 
includes a student who is a member of an Indian Tribe or a biological 
child of a living or deceased member of an Indian Tribe; documentation 
is required to verify eligibility. See 25 U.S.C. 1801(a)(7); 25 CFR 
41.3.

C. Role of the Secretary of Education (41.17)

    A commenter asked what the role of the U.S. Secretary of Education 
is, and if there will be any consultations between the Secretary of 
Education, Director of the BIE, and Tribes that charter Tribal colleges 
and universities to discuss how they can expand their joint 
responsibilities. The final rule establishes the role of the Secretary 
of Education at Sec.  41.17. The BIE follows the Department of the 
Interior Tribal Consultation Policy and consults with Tribes on 
policies that have a substantial direct effect on one or more Tribes.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department certifies that this rule 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.). It does not have any 
effect on small entities because only Tribal colleges and universities 
are recipients of funding under the program governed by this rule. The 
Department provides funding to Tribal colleges and universities, which 
were created in response to the higher education needs of American 
Indians and generally serve geographically isolated populations that 
have no other means of accessing education beyond the high school 
level.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule does not have 
an annual effect on the economy of $100 million or more

[[Page 38587]]

in any one year, will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions, and does not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of the U.S.-based enterprises to compete 
with foreign-based enterprises. This rule is limited to addressing 
grants for Tribal colleges and universities that are below the stated 
threshold and funding for the operation and improvement of Tribal 
colleges and universities comes from the Federal Government budget.

D. 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 does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involve a compensable ``taking''. A takings implication 
assessment is not required.

F. Federalism (E.O.) 13132

    Under the criteria in Executive Order 13132, this rule has no 
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 
implements statutory provisions that authorize grants for operating and 
improving Tribal colleges or universities to ensure continued and 
expanded educational opportunities for Indian students by providing 
financial assistance to be used for the operating expenses of education 
programs. Because the rule does not affect the Federal government's 
relationship to the States or the balance of power and responsibilities 
among various levels of government, it will not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have identified substantial direct effects on federally 
recognized Indian Tribes that will result from this rule. This rule 
will further implement the grants program for Tribal colleges and 
universities; accordingly, we have coordinated with representatives of 
federally recognized Tribes throughout the development of this rule. We 
collaborated with the American Indian Higher Education Consortium 
(AIHEC), which represents Tribal colleges and universities that will be 
affected by the rule. Presidents of Tribal colleges and universities 
provided the initial comments and drafted the Preliminary Discussion 
Draft. The BIE held five consultation sessions in 2014 (79 FR 54936, 
September 15, 2014) on the Preliminary Discussion Draft. The BIE 
received 35 comments and those that were significant were considered 
into the proposed rule. Following publication of the proposed rule, BIE 
hosted two Tribal consultation sessions with Indian Tribes. BIE has 
addressed the input received during those sessions in this final rule.

I. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires Office of Management and Budget (OMB) 
approval, unless such approval has been obtained and the collection 
request displays a currently valid OMB control number. Nor is any 
person required to respond to an information collection request that 
has not complied with the PRA. This rule contains information 
collection requirements that already have OMB approval and are not 
being revised. OMB has approved the information collections and 
assigned two control numbers: OMB Control Number 1076-0018, and OMB 
Control Number 1076-0105, each expiring on December 31, 2018, and each 
with an estimated annual burden of 308 hours.

J. 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 (NEPA) is not 
required because the rule is covered by a categorical exclusion. See 43 
CFR 46.210(i). We have also determined that this rule does not involve 
any of the extraordinary circumstances listed in 43 CFR 46.215 that 
would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

L. Drafting Information

    The primary authors of this document are Juanita Mendoza, Acting 
Chief of Staff, Bureau of Indian Education, Dawn Baum, Office of the 
Solicitor--Division of Indian Affairs, and Regina Gilbert, Office of 
Regulatory Affairs & Collaborative Action--Indian Affairs, Department 
of the Interior.

List of Subjects in 25 CFR Part 41

    Colleges or universities, Grants programs--education, Grant 
programs--Indians, Indians--education, Reporting and recordkeeping 
requirements.

    For the reasons given in the preamble, the Department of the 
Interior amends title 25 of the Code of Federal Regulations to revise 
part 41 to read as follows:

PART 41--GRANTS TO TRIBAL COLLEGES AND UNIVERSITIES AND DIN[Eacute] 
COLLEGE

Subpart A--Applicability and Definitions
Sec.
41.1 When does this subpart apply?
41.3 What definitions are needed?
41.5 How is ISC/FTE calculated?
41.7 What happens if false information is submitted?
Subpart B--Tribal Colleges and Universities
41.9 What is the purpose of this subpart?
41.11 Who is eligible for financial assistance under this subpart?
41.13 For what activities can financial assistance to Tribal 
colleges and universities be used?
41.15 What activities are prohibited?
41.17 What is the role of the Secretary of Education?
41.19 How can a Tribal college or university establish eligibility 
to receive a grant?
41.21 How can a Tribe appeal the results of an eligibility study?

[[Page 38588]]

41.23 Can a Tribal college or university request a second 
eligibility study?
41.25 How does the Tribal college or university apply for a grant?
41.27 When can the Tribal college or university expect a decision on 
its application?
41.29 How will a grant be awarded?
41.31 When will the Tribal college or university receive funding?
41.33 What if there isn't enough money to pay the full grant amount?
41.35 What will happen if the Tribal college or university doesn't 
receive its appropriate share?
41.37 Is the Tribal college or university eligible for other grants?
41.39 What reports does the Tribal college or university need to 
provide?
41.41 Can the Tribal college or university receive technical 
assistance?
41.43 How must the Tribal college or university administer its 
grant?
41.45 How does the Tribal college or university apply for 
programming grants?
41.47 Are Tribal colleges or universities eligible for endowments?
Subpart C--Din[eacute] College
41.49 What is the purpose of this subpart?
41.51 What is the scope of this subpart?
41.53 How does Din[eacute] College request financial assistance?
41.55 How are grant funds processed?
41.57 When will the application be reviewed?
41.59 When will the funds be paid?
41.61 Is Din[eacute] College eligible to receive other grants?
41.63 How can financial assistance be used?
41.65 What reports must be provided?
41.67 Can Din[eacute] College receive technical assistance?
41.69 How must Din[eacute] College administer its grant?
41.71 Can Din[eacute] College appeal an adverse decision under a 
grant agreement by the Director?

    Authority:  Public Law 95-471, Oct. 17, 1978, 92 Stat. 1325; 
amended Public Law 98-192, Dec. 1, 1983, 97 Stat. 1335; Public Law 
99-428, Sept. 30, 1986, 100 Stat. 982; Public Law 105-244, Oct. 7, 
1998, 112 Stat. 1619; Public Law 110-315, Aug. 14, 2008, 122 Stat. 
3460; 25 U.S.C. 1801 et seq.; Public Law 98-192, Dec. 15, 1971, 85 
Stat. 646; and Public Law 110-315, Aug. 14, 2008, 122 Stat. 3468; 25 
U.S.C. 640a et seq.

Subpart A--Applicability and Definitions


Sec.  41.1  When does this subpart apply?

    The provisions in this subpart A apply to subparts B and C.


Sec.  41.3  What definitions are needed?

    As used in this part:
    Academic facilities mean structures suitable for use as:
    (1) Classrooms, laboratories, libraries, and related facilities 
necessary or appropriate for instruction of students;
    (2) Research facilities;
    (3) Facilities for administration of educational or research 
programs;
    (4) Dormitories or student services buildings; or
    (5) Maintenance, storage, support, or utility facilities essential 
to the operation of the foregoing facilities.
    Academic term means a semester, trimester, or other such period 
(not less than six weeks in duration) into which a Tribal college or 
university normally subdivides its academic year, but does not include 
a summer term.
    Academic year means a twelve month period established by a Tribal 
college or university as the annual period for the operation of the 
Tribal college's or university's education programs.
    Assistant Secretary means the Assistant Secretary--Indian Affairs 
of the Department of the Interior.
    BIE means the Bureau of Indian Education.
    College or university means an institution of higher education that 
is formally controlled, formally sanctioned, or chartered by the 
governing body of an Indian Tribe or Tribes. To qualify under this 
definition, the college or university must:
    (1) Be the only institution recognized by the Department for the 
Tribe, excluding Din[eacute] College; and
    (2) If under the control, sanction, or charter of more than one 
Tribe, be the only institution recognized by the Department for at 
least one Tribe that currently has no other formally controlled, 
formally sanctioned, or chartered college or university.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Education.
    Eligible continuing education units (CEUs) means non-degree credits 
that meet the criteria established by the International Association of 
Continuing Education and Training.
    Full-time means registered for 12 or more credit hours for an 
academic term.
    Indian Student Count (ISC) or Indian Full-Time Equivalent (FTE) 
means a number equal to the total number of Indian students enrolled at 
a Tribal college or university, determined according to the formula in 
Sec.  41.5.
    Indian student means a student who is a member of an Indian Tribe, 
or a biological child of a living or deceased member of an Indian 
Tribe. Documentation is required to verify eligibility as a biological 
child of a living or deceased member of an Indian Tribe, and may 
include birth certificate and marriage license; Tribal records of 
student's parent; Indian Health Service eligibility cards; other 
documentation necessary to authenticate a student as eligible to be 
counted as an Indian student under this definition.
    Indian Tribe means an Indian Tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaska 
Native Village or regional or village corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act, to be 
listed in the Federal Register pursuant to 25 CFR 83.5(a) as recognized 
by and eligible to receive services from the Bureau of Indian Affairs.
    Institution of higher education means an institution as defined by 
section 1001(a) of Title 20 of the United States Code, except that 
clause (2) of such section is not applicable and the reference to 
Secretary in clause (5)(A) of such section will be deemed to refer to 
the Secretary of the Interior.
    National Indian organization means an organization which the 
Secretary finds to be nationally based, represents a substantial Indian 
constituency and has expertise in the fields of Tribal colleges and 
universities, and Indian higher education.
    NCCA means the Navajo Community College Act of 1978, as amended (25 
U.S.C. 640a et seq.).
    Operating expenses of education programs means the obligations and 
expenditures of a Tribal college or university for postsecondary 
education, except for obligations and expenditures for acquisition or 
construction of academic facilities. Permissible expenditures may 
include:
    (1) Administration;
    (2) Instruction;
    (3) Maintenance and repair of facilities; and
    (4) Acquisition and upgrade of equipment, technological equipment, 
and other physical resources.
    Part-time means registered for less than 12 credit hours for an 
academic term.
    Satisfactory progress means satisfactory progress toward a degree 
or certificate as defined by the Tribal college or university.
    Secretary, unless otherwise designated, means the Secretary of the 
Interior, or his/her duly authorized representative.
    TCCUA means the Tribally Controlled Colleges and Universities 
Assistance Act of 1978, as amended (25 U.S.C. 1801 et seq.).
    You or your means the Tribal college or university.


Sec.  41.5  How is ISC/FTE calculated?

    (a) ISC is calculated on the basis of eligible registrations of 
Indian students as of the conclusion of the third week of each academic 
term.

[[Page 38589]]

    (b) To calculate ISC for an academic term, begin by adding all 
credit hours of full-time Indian students and all credit hours of part-
time Indian students, including full-time and part-time distance 
education Indian students, who are registered at the conclusion of the 
third week of the academic term.
    (c) Credit hours earned by Indian students who have not obtained a 
high school degree or its equivalent may be added if you have 
established criteria for the admission of such students on the basis of 
their ability to benefit from the education or training offered. You 
will be presumed to have established such criteria if your admission 
procedures include counseling or testing that measures students' 
aptitude to successfully complete the courses in which they enroll.
    (d) No credit hours earned by an Indian student attending high 
school and applied towards the student's high school degree or its 
equivalent may be counted toward computation of ISC; and no credit 
hours earned by an Indian student not making satisfactory progress 
toward a degree or certificate may count toward the ISC.
    (e) If ISC is being calculated for a fall term, add to the 
calculation in paragraph (b) of this section any credits earned in 
classes offered during the preceding summer term.
    (f) Add to the calculation in paragraph (b) of this section those 
credits being earned in an eligible continuing education program at the 
conclusion of the third week of the academic term. Determine the number 
of those credits as follows:
    (1) For institutions on a semester system: One credit for every 15 
contact hours and
    (2) For institutions on a quarter system: One credit for every 10 
contact hours of participation in an organized continuing education 
experience under responsible sponsorship, capable direction, and 
qualified instruction, as described in the criteria established by the 
International Association for Continuing Education and Training. Limit 
the number of calculated eligible continuing education credits to 10 
percent of your ISC.
    (g) Divide by 12 the final calculation in paragraph (f) of this 
section. The formula for the full calculation is expressed 
mathematically as:

ISC = (FTCR + PTCR + SCR + CECR)/12

    (h) In the formula in paragraph (g) of this section, the 
abbreviations used have the following meanings:
    (1) FTCR = the number of credit hours carried by full-time Indian 
students (students carrying 12 or more credit hours at the end of the 
third week of each academic term); and
    (2) PTCR = the number of credit hours carried by part-time Indian 
students (students carrying fewer than 12 credit hours at the end of 
the third week of each academic term).
    (3) SCR = in a fall term, the number of credit hours earned during 
the preceding summer term.
    (4) CECR = the number of credit hours being earned in an eligible 
continuing education program at the conclusion of the third week of the 
academic term, in accordance with paragraph (f)(2) of this section.


Sec.  41.7  What happens if false information is submitted?

    Persons submitting or causing to be submitted any false information 
in connection with any application, report, or other document under 
this part may be subject to criminal prosecution under provisions such 
as sections 371 or 1001 of Title 18, U.S. Code.

Subpart B--Tribal Colleges and Universities


Sec.  41.9  What is the purpose of this subpart?

    This subpart prescribes procedures for providing financial and 
technical assistance under the TCCUA for the operation and improvement 
of Tribal colleges and universities and advancement of educational 
opportunities for Indian students. This subpart does not apply to 
Din[eacute] College.


Sec.  41.11  Who is eligible for financial assistance under this 
subpart?

    (a) A Tribal college or university is eligible for financial 
assistance under this subpart only if it:
    (1) Is governed by a board of directors or board of trustees, a 
majority of whom are Indians;
    (2) Demonstrates adherence to stated goals, a philosophy, or a plan 
of operation directed to meet the needs of Indians;
    (3) Has a student body that is more than 50 percent Indian (unless 
it has been in operation for less than one year);
    (4) Is either:
    (i) Accredited by a nationally recognized accrediting agency or 
association determined by the Secretary of Education to be a reliable 
authority with regard to the quality of training offered; or
    (ii) Is making reasonable progress toward accreditation according 
to such agency or association;
    (5) Has received a positive determination after completion of an 
eligibility study; and
    (6) Complies with the requirements of Sec.  41.19.
    (b) Priority in grants is given to institutions that were in 
operation on October 17, 1978, and that have a history of service to 
Indian people.


Sec.  41.13  For what activities can financial assistance to Tribal 
colleges and universities be used?

    Tribal colleges and universities may use financial assistance under 
this subpart to defray expenditures for academic, educational, and 
administrative purposes and for the operation and maintenance of the 
college or university.


Sec.  41.15  What activities are prohibited?

    Tribal colleges and universities must not use financial assistance 
awarded under this subpart in connection with religious worship or 
sectarian instruction. However, nothing in this subpart will be 
construed as barring instruction or practice in comparative religions 
or cultures or in languages of Indian Tribes.


Sec.  41.17  What is the role of the Secretary of Education?

    (a) The Secretary may enter into an agreement with the Secretary of 
Education to obtain assistance to:
    (1) Develop plans, procedures, and criteria for eligibility studies 
required under this subpart; and
    (2) Conduct such studies.
    (b) BIE must consult with the Secretary of Education to determine 
the reasonable number of students required to support a Tribal college 
or university.


Sec.  41.19  How can a Tribal college or university establish 
eligibility to receive a grant?

    (a) Before a Tribal college or university can apply for an initial 
grant under this part, the governing body of one or more Indian Tribes 
must request a determination of eligibility on the college's or 
university's behalf.
    (b) Within 30 days of receiving a resolution or other duly 
authorized request from the governing body of one or more Indian 
Tribes, BIE will initiate an eligibility study to determine whether 
there is justification to encourage and maintain a Tribal college or 
university.
    (c) The eligibility study will analyze the following factors:
    (1) Financial feasibility based upon reasonable potential 
enrollment; considering:
    (i) Tribal, linguistics, or cultural differences;

[[Page 38590]]

    (ii) Isolation;
    (iii) Presence of alternate educational sources;
    (iv) Proposed curriculum;
    (2) Levels of Tribal matriculation in and graduation from 
postsecondary educational institutions; and
    (3) The benefits of continued and expanded educational 
opportunities for Indian students.
    (d) Based upon results of the study, the Director will send the 
Tribe a written determination of eligibility.
    (e) The Secretary and the BIE, to the extent practicable, will 
consult with national Indian organizations and with Tribal governments 
chartering the colleges or universities being considered.


Sec.  41.21  How can a Tribe appeal the results of an eligibility 
study?

    If a Tribe receives a negative determination under Sec.  41.19(d), 
it may submit an appeal to the Assistant Secretary within 45 days.
    (a) Following the timely filing of a Tribe's notice of appeal, the 
Tribal college or university and the Tribe have a right to a formal 
review of the eligibility study, including a hearing upon reasonable 
notice within 60 days. At the hearing, the Tribal college or university 
and the appealing Tribe may present additional evidence or arguments to 
justify eligibility.
    (b) Within 45 days of the hearing, the Assistant Secretary will 
issue a written ruling confirming, modifying, or reversing the original 
determination. The ruling will be final and BIE will mail or deliver it 
within one week of its issuance.
    (c) If the Assistant Secretary does not reverse the original 
negative determination, the ruling will specify the grounds for the 
decision and state the manner in which the determination relates to 
each of the factors in Sec.  41.11.


Sec.  41.23  Can a Tribal college or university request a second 
eligibility study?

    If a Tribe is not successful in its appeal under Sec.  41.21, it 
can request another eligibility study 12 months or more after the date 
of the negative determination.


Sec.  41.25  How does a Tribal college or university apply for a grant?

    (a) If the Tribal college or university receives a positive 
determination of the eligibility study under Sec.  41.19(d), it is 
entitled to apply for financial assistance under this subpart.
    (b) To be considered for assistance, a Tribal college or university 
must submit an application by or before June 1st of the year preceding 
the academic year for which the Tribal college or university is 
requesting assistance. The application must contain the following:

----------------------------------------------------------------------------------------------------------------
                     Required information                                       Required details
----------------------------------------------------------------------------------------------------------------
(1) Identifying information..................................  (i) Name and address of the Tribal college or
                                                                university.
                                                               (ii) Names of the governing board members, and
                                                                the number of its members who are Indian.
                                                               (iii) Name and address of the Tribe or Tribes
                                                                that control or have sanctioned or chartered the
                                                                Tribal college or university.
(2) Eligibility verification.................................  The date on which an eligibility determination
                                                                was received.
(3) Curriculum materials.....................................  (i) A statement of goals, philosophy, or plan of
                                                                operation demonstrating how the education
                                                                program is designed to meet the needs of
                                                                Indians.
                                                               (ii) A curriculum, which may be in the form of a
                                                                college catalog or similar publication, or
                                                                information located on the Tribal college or
                                                                university Web site.
(4) Financial information....................................  (i) A proposed budget showing total expected
                                                                education program operating expenses and
                                                                expected revenues from all sources for the
                                                                academic year to which the information applies.
                                                               (ii) A description of record-keeping procedures
                                                                used to track fund expenditures and to audit and
                                                                monitor funded programs.
(5) Enrollment information...................................  (i) If the Tribal college or university has been
                                                                in operation for more than one year, a statement
                                                                of the total number of ISC (FTE Indian students)
                                                                and the total number of all FTE students.
                                                                Grantees may exclude high school students for
                                                                the purpose of calculating the total number of
                                                                FTE students.
                                                               (ii) If the Tribal college or university has not
                                                                yet begun operations, or has been in operation
                                                                for less than one year, a statement of expected
                                                                enrollment, including the total number of FTE
                                                                students and the ISC (FTE Indian students) and
                                                                may also require verification of the number of
                                                                registered students after operations have
                                                                started.
(6) Assurances and requests..................................  (i) Assurance that the Tribal college or
                                                                university will not deny admission to any Indian
                                                                student because that student is, or is not, a
                                                                member of a specific Tribe.
                                                               (ii) Assurance that the Tribal college or
                                                                university will comply with the requirements in
                                                                Sec.   41.39 of this subpart.
                                                               (iii) A request and justification for a specific
                                                                waiver of any requirement of 25 CFR part 276
                                                                which a Tribal college or university believe to
                                                                be inappropriate.
(7) Certification............................................  Certification by the chief executive that the
                                                                information on the application is complete and
                                                                correct.
----------------------------------------------------------------------------------------------------------------

    (c) Material submitted in a Tribal college's or university's 
initial successful grant application will be retained by the BIE. A 
Tribal college or university submitting a subsequent application for a 
grant, must either confirm the information previously submitted remains 
accurate or submit updated information, as necessary.


Sec.  41.27  When can the Tribal college or university expect a 
decision on its application?

    Within 45 days of receiving an application, the Director will 
notify the Tribal college or university in writing whether or not the 
application has been approved.
    (a) If the Director approves the application, written notice will 
explain when the BIE will send the Tribal college or university a grant 
agreement under Sec.  41.19.
    (b) If the Director disapproves the application, written notice 
will include:
    (1) The reasons for disapproval; and
    (2) A statement advising the Tribal college or university of the 
right to amend or supplement the Tribal college's or university's 
application within 45 days.
    (c) The Tribal college or university may appeal a disapproval or a 
failure to act within 45 days of receipt following the procedures in 
Sec.  41.21.


Sec.  41.29  How will a grant be awarded?

    If the Director approves the Tribal college's or university's 
application, the BIE will send the Tribal college or university a grant 
agreement that incorporates the Tribal college's or university's 
application and the

[[Page 38591]]

provisions required by Sec.  41.25. The Tribal college or university 
grant will be for the fiscal year starting after the approval date of 
the application.
    (a) The BIE will generally calculate the amount of the Tribal 
college or university grant using the following procedure:
    (1) Begin with a base amount of $8,000 (adjusted annually for 
inflation);
    (2) Multiply the base amount by the number of FTE Indian students 
in attendance during each academic term; and
    (3) Divide the resulting sum by the number of academic terms in the 
academic year.
    (b) All grants under this section are subject to availability of 
appropriations.
    (c) If there are insufficient funds to pay the amount calculated 
under paragraph (a) of this section, BIE will reduce the grant amount 
awarded to each eligible Tribal college or university on a pro rata 
basis.


Sec.  41.31  When will the Tribal college or university receive 
funding?

    (a) BIE will authorize payments equal to 95 percent of funds 
available for allotment by either July 1 or within 14 days after 
appropriations become available, with the remainder of the payment made 
no later than September 30.
    (b) BIE will not commingle funds appropriated for grants under this 
subpart with other funds expended by the BIE.


Sec.  41.33  What if there isn't enough money to pay the full grant 
amount?

    This section applies if BIE has to reduce payments under Sec.  
41.29(c).
    (a) If additional funds have not been appropriated to pay the full 
amount of grants under this part on or before June 1st of the year, the 
BIE will notify all grant recipients in writing. The Tribal college or 
university must submit a written report to the BIE on or before July 
1st explaining how much of the grant money remains unspent.
    (b) After receiving the Tribal college's or university's report 
under paragraph (a) of this section, BIE will:
    (1) Reallocate the unspent funds using the formula in Sec.  41.29 
in proportion to the amount of assistance to which each grant recipient 
is entitled but has not received;
    (2) Ensure that no Tribal college or university will receive more 
than the total annual cost of its education programs;
    (3) Collect unspent funds as necessary for redistribution to other 
grantees under this section; and
    (4) Make reallocation payments on or before August 1st of the 
academic year.


Sec.  41.35  What will happen if the Tribal college or university 
doesn't receive its appropriate share?

    (a) If the BIE determines the Tribal college or university has 
received financial assistance to which the Tribal college or university 
was not entitled, BIE will:
    (1) Promptly notify the Tribal college or university; and
    (2) Reduce the amount of the Tribal college's or university's 
payments under this subpart to compensate for any overpayments or 
otherwise attempt to recover the overpayments.
    (b) If a Tribal college or university has received less financial 
assistance than the amount to which the Tribal college or university 
was entitled, the Tribal college or university should promptly notify 
the BIE. If the BIE confirms the miscalculation, BIE will adjust the 
amount of the Tribal college's or university's payments for the same or 
subsequent academic years to compensate for the underpayments. This 
adjustment will come from the Department's general funds and not from 
future appropriated funds.


Sec.  41.37  Is the Tribal college or university eligible for other 
grants?

    Yes. Eligibility for grants under this subpart does not bar a 
Tribal college or university from receiving financial assistance under 
any other Federal program.


Sec.  41.39  What reports does the Tribal college or university need to 
provide?

    (a) The Tribal college or university must provide the BIE, on or 
before December 1 of each year, a report that includes:
    (1) An accounting of the amounts and purposes for which the Tribal 
college or university spent assistance received under this part during 
the preceding academic year;
    (2) An accounting of the annual cost of the Tribal college's or 
university's education programs from all sources for the academic year; 
and
    (3) A final performance report based upon the criteria the Tribal 
college's or university's goals, philosophy, or plan of operation.
    (b) The Tribal college or university must report to the BIE their 
FTE Indian student enrollment for each academic term of the academic 
year within three (3) weeks of the date the Tribal college or 
university makes the FTE calculation.


Sec.  41.41  Can the Tribal college or university receive technical 
assistance?

    (a) If a Tribal college or university sends the BIE a written 
request for technical assistance, BIE will respond within 30 days.
    (b) The BIE will provide technical assistance either directly or 
through annual contract to a national Indian organization that the 
Tribal college or university designates.
    (c) Technical assistance may include consulting services for 
developing programs, plans, and eligibility studies and accounting, and 
other services or technical advice.


Sec.  41.43  How must the Tribal college or university administer its 
grant?

    In administering any grant provided under this subpart, a Tribal 
college or university must:
    (a) Provide services or assistance under this subpart in a fair and 
uniform manner;
    (b) Not deny admission to any Indian student because they either 
are, or are not, a member of a specific Indian Tribe; and
    (c) Comply with part 276 of this chapter, unless the BIE expressly 
waives specific inappropriate provisions of part 276 in response to a 
Tribal college or university request and justification for a waiver.


Sec.  41.45  How does the Tribal college or university apply for 
programming grants?

    (a) Tribes and Tribal entities may submit a written request to the 
BIE for a grant to conduct planning activities for the purpose of 
developing proposals for the establishment of Tribally controlled 
colleges and universities, or to determine the need and potential for 
the establishment of such colleges and universities. BIE will provide 
written notice to the Tribal college or university of its determination 
on the grant request within 30 days.
    (b) Subject to the availability of appropriations, BIE may provide 
such grants to up to five Tribes and Tribal entities in the amount of 
$15,000 each.


Sec.  41.47  Are Tribal colleges or universities eligible for 
endowments?

    Yes. Tribal colleges and universities are eligible for endowments 
under a signed agreement between the Tribal college and university and 
the Secretary as described in 25 U.S.C. 1832. Endowments must be 
invested in a trust fund and the Tribal college or university may only 
use the interest deposited for the purpose of defraying expenses 
associated with the operation of the Tribal college or university (25 
U.S.C. 1833).

Subpart C--Din[eacute] College


Sec.  41.49  What is the purpose of this subpart?

    The purpose of this subpart is to assist the Navajo Nation in 
providing

[[Page 38592]]

education to the members of the Tribe and other qualified applicants 
through a community college, established by that Tribe, known as 
Din[eacute] College. To that end, the regulations in this subpart 
prescribe procedures for providing financial and technical assistance 
for Din[eacute] College under the NCCA.


Sec.  41.51  What is the scope of this subpart?

    The regulations in this subpart are applicable to the provision of 
financial assistance to Din[eacute] College pursuant to NCCA, title II 
of the TCCUA.


Sec.  41.53  How does Din[eacute] College request financial assistance?

    To request financial assistance, Din[eacute] College must submit an 
application. The application must be certified by the Din[eacute] 
College chief executive officer and include:
    (a) A statement of Indian student enrollment and total FTE 
enrollment for the preceding academic year;
    (b) A curriculum description, which may be in the form of a college 
catalog or like publication or information located on the Din[eacute] 
College Web site; and
    (c) A proposed budget showing total expected operating expenses of 
educational programs and expected revenue from all sources for the 
grant year.


Sec.  41.55  How are grant funds processed?

    (a) BIE will identify the budget request for Din[eacute] College 
separately in its annual budget justification.
    (b) BIE will not commingle funds appropriated for grants under this 
subpart with appropriations that are historically expended by the 
Bureau of Indian Affairs for programs and projects normally provided on 
the Navajo Reservation for Navajo beneficiaries.


Sec.  41.57  When will the application be reviewed?

    Within 45 days of receiving the application the BIE will send a 
grant agreement for signature by the Din[eacute] College president or 
his or her designee in an amount determined under Sec.  41.29(a). The 
grant agreement will incorporate the grant application and include the 
provisions required by Sec.  41.25.


Sec.  41.59  When will grant funds be paid?

    (a) Initial grant funds will be paid in an advance installment of 
not less than 40 percent of the funds available for allotment by 
October 1st.
    (b) The remainder of the grant funds will be paid by July 1st after 
the BIE adjusts the amount to reflect any overpayments or underpayments 
made in the first disbursement.


Sec.  41.61  Is Din[eacute] College eligible to receive other grants?

    Yes. Eligibility for grants under this subpart does not bar 
Din[eacute] College from receiving financial assistance under any other 
Federal program.


Sec.  41.63  How can financial assistance be used?

    (a) The Din[eacute] College must use financial assistance under 
this subpart only for operation and maintenance, including educations 
programs, annual capital expenditures, major capital improvements, 
mandatory payments, supplemental student services, and improvement and 
expansion, as described in 25 U.S.C. 640c-1(b)(1);
    (b) The Din[eacute] College must not use financial assistance under 
this subpart for religious worship or sectarian instruction. However, 
this subpart does not prohibit instruction about religions, cultures or 
Indian Tribal languages.


Sec.  41.65  What reports must be provided?

    (a) Din[eacute] College must submit on or before December 1st of 
each year a report that includes:
    (1) An accounting of the amounts and purposes for which Din[eacute] 
College spent the financial assistance during the preceding academic 
year;
    (2) The annual cost of Din[eacute] College education programs from 
all sources for the academic year; and
    (3) A final report of Din[eacute] College's performance based upon 
the criteria in its stated goals, philosophy, or plan of operation.
    (b) Din[eacute] College must report its FTE Indian student 
enrollment for each academic term within six weeks of the date it makes 
the FTE calculation.


Sec.  41.67  Can Din[eacute] College receive technical assistance?

    Technical assistance will be provided to Din[eacute] College as 
noted in Sec.  41.41.


Sec.  41.69  How must Din[eacute] College administer its grant?

    In administering any grant provided under this subpart, Din[eacute] 
College must:
    (a) Provide all services or assistance under this subpart in a fair 
and uniform manner;
    (b) Not deny admission to any Indian student because the student 
is, or is not, a member of a specific Indian Tribe; and
    (c) Comply with part 276 of this chapter, unless the BIE expressly 
waives specific inappropriate provisions of part 276 in response to 
Din[eacute] College's request and its justification for a waiver.


Sec.  41.71  Can Din[eacute] College appeal an adverse decision under a 
grant agreement by the Director?

    Din[eacute] College has the right to appeal to the Assistant 
Secretary by filing a written notice of appeal within 45 days of the 
adverse decision. Within 45 days after receiving notice of appeal, the 
Assistant Secretary will conduct a formal hearing at which time the 
Din[eacute] College may present evidence and argument to support its 
appeal. Within 45 days of the hearing, the Assistant Secretary will 
issue a written ruling on the appeal confirming, modifying or reversing 
the decision of the Director. If the ruling does not reverse the 
adverse decision, the Assistant Secretary will state in detail the 
basis of his/her ruling. The ruling of the Assistant Secretary on an 
appeal will be final for the Department.

    Dated: May 26, 2016.
Lawrence S. Roberts,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2016-14094 Filed 6-13-16; 8:45 am]
 BILLING CODE 4337-15-P