[Title 25 CFR E]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter E - EDUCATION]
[From the U.S. Government Printing Office]


25INDIANS12004-04-012004-04-01falseEDUCATIONESUBCHAPTER EINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
                         SUBCHAPTER E_EDUCATION


PART 31_FEDERAL SCHOOLS FOR INDIANS--Table of Contents




Sec.
31.0 Definitions.
31.1 Enrollment in Federal schools.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
31.5 Consent for transfer.
31.6 Coercion prohibited.
31.7 Handling of student funds in Federal school facilities.

    Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise 
noted.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.



Sec. 31.0  Definitions.

    As used in this part:
    (a) School district means the local unit of school administration as 
defined by the laws of the State in which it is located.
    (b) Cooperative school means a school operated under a cooperative 
agreement between a school district and the Bureau of Indian Affairs in 
conformance with State and Federal school laws and regulations.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6472, Apr. 27, 1968]



Sec. 31.1  Enrollment in Federal schools.

    (a) Enrollment in Bureau-operated schools is available to children 
of one-fourth or more degree of Indian blood reside within the exterior 
boundaries of Indian reservations under the jurisdiction of the Bureau 
of Indian Affairs or on trust or restricted lands under the jurisdiction 
of the Bureau of Indian Affairs except when there are other appropriate 
school facilities available to them as hereinafter provided in paragraph 
(c) of this section.
    (b) Enrollment in Bureau-operated boarding schools may also be 
available to children of one-fourth or more degree of Indian blood who 
reside near the reservation when a denial of such enrollment would have 
a direct effect upon Bureau programs within the reservation.
    (c) Children of Federal employees, whether Indian or non-Indian, are 
deemed eligible on the same basis as other eligible students for 
enrollment at facilities provided by the school district (including 
cooperative schools) wherein they reside.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6473, Apr. 27, 1968; 33 FR 6968, May 9, 1968]



Sec. 31.2  Use of Federal school facilities.

    Federal Indian school facilities may be used for community 
activities and for adult education activities upon approval by the 
superintendent or officer in charge.



Sec. 31.3  Non-Indian pupils in Indian schools.

    Indian and non-Indian children who are not eligible for enrollment 
in Bureau-operated schools under Sec. 31.1 may be enrolled in such 
schools under the following conditions:
    (a) In boarding schools upon payment of tuition fees, which shall 
not exceed the per capita cost of maintenance in the school attended, 
when their presence will not exclude Indian pupils eligible under Sec. 
31.1.
    (b) In day schools in areas where there are no other adequate free 
school facilities available, tuition fees may be charged for such 
enrollment at the discretion of the superintendent or other officer in 
charge provided such fees shall not exceed the tuition fees allowed or 
charged by the State or county in which such school is located for the 
children admitted in the public schools of such State or county.

(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)

[29 FR 5828, May 2, 1964]



Sec. 31.4  Compulsory attendance.

    Compulsory school attendance of Indian children is provided for by 
law.

(60 Stat. 962; 25 U.S.C. 231)

    Cross Reference: For penalties for the failure of Indians to send 
children to school and for contributing to the delinquency of minors, 
see Sec. 11.424 of this chapter.

[[Page 129]]



Sec. 31.5  Consent for transfer.

    Consent of the parents or next of kin, given before the 
superintendent or other duly authorized person, must be obtained before 
an Indian child is sent to a school beyond the limits of the State or 
Territory in which the reservation is located.

(Sec. 1, 28 Stat. 906; 25 U.S.C. 286)



Sec. 31.6  Coercion prohibited.

    There shall be no coercion of children in the matter of transfers 
from one school to another, but voluntary enrollment should be effected 
through maintenance of Federal Indian schools or programs which suit the 
needs and interests of the areas in which they are located.

(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)



Sec. 31.7  Handling of student funds in Federal school facilities.

    The Secretary or his authorized representative may authorize 
officials and employees of the Bureau of Indian Affairs to accept and to 
disburse deposits of funds of students and student activity associations 
in schools operated by the Bureau in accordance with the purposes of 
such deposits. The following steps shall be taken to safeguard these 
funds:
    (a) A written plan of operation shall be developed by the membership 
of each student activity group. The plan of operation subject to the 
approval of authorized officials shall outline procedures and provide 
for a system of accounting for the student funds commensurate with the 
age and grade level of the students yet adequate for financial control 
purposes and shall stipulate the maximum operating capital of activity.
    (b) Appropriate safekeeping facilities shall be provided for all 
student personal and group funds and for the accounting or bookkeeping 
records.
    (c) Employees handling student funds in cumulative amounts in excess 
of $100 shall be covered by a comprehensive fidelity bond the penal sum 
of which shall be appropriately related to fund amounts handled.
    (d) Student funds accumulated in excess of the amount authorized for 
operating purposes by the plan of operation shall be deposited in 
federally insured depositories.
    (e) Periodic administrative inspections and financial audit of 
student fund operations shall be conducted by authorized Bureau 
personnel.

[26 FR 10637, Nov. 14, 1961]



PART 32_INDIAN EDUCATION POLICIES--Table of Contents





Sec.
32.1 Purpose and scope.
32.2 Definitions.
32.3 Mission statement.
32.4 Policies.
32.5 Evaluation of implementation of Pub. L. 95-561.

    Authority: Secs. 1130 and 1133 of Title XI of the Education 
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25 
U.S.C. 2010 and 2013).

    Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 32.1  Purpose and scope.

    The purpose of this part is to state the policies to be followed by 
all schools and education programs under the jurisdiction of the Bureau 
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska 
Native entities may develop their independent policies, consistent with 
contractual obligations, or adhere to these. The adherence to the 
appropriate policies shall reflect the best interests of the student, 
the Federal government, the Tribes and Alaska Native entities, and shall 
be based on educationally sound judgment.



Sec. 32.2  Definitions.

    As used in this part, the term:
    (a) 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 or Alaska Native 
entities except that, in agencies serving a single school, the school 
board of such school shall fulfill these duties.
    (b) Alaska Native means an Indian, Eskimo, or Aleut who is a member 
of an Alaska Native entity.

[[Page 130]]

    (c) Alaska Native Entity means any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et 
seq.).
    (d) Alaska Native Village means any Native village as defined in 
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689; 
43 U.S.C. 1602 (c)).
    (e) Boarding school, hereinafter referred to as residential school, 
means a Bureau school offering residential care and support services as 
well as an academic program.
    (f) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (g) Consultation means a conferring process with Tribes, Alaska 
Native entities, and Tribal organizations on a periodic and systematic 
basis in which the Bureau and Department officials listen to and give 
effect, to the extent they can, to the views of these entities.
    (h) Contract school means a school (other than a public school) 
which is Tribally operated and aided by a financial assistance contract 
with the Bureau.
    (i) Day school means a Bureau school offering an academic program 
and certain support services such as counseling, food, transportation, 
etc., but excluding residential care.
    (j) Director means the Director, Office of Indian Education 
Programs, Bureau of Indian Affairs.
    (k) Early childhood education means comprehensive education 
activities with continuity of educational approach for children ages 0-8 
years and their familes, appropriate for their age, development, 
language and culture which supplement and support usual family 
responsibilities for child growth and development. They are coordinated 
with, but do not supplant, existing educational, health, nutritional, 
social and other necessary services.
    (l) Exceptional Education Programs mean the provision of services to 
those children who are identified as handicapped and have been found to 
meet the criteria of handicapped as defined in Pub. L. 94-142, and 
programs for gifted and talented students.
    (m) Indian means a member of an Indian Tribe.
    (n) Indian Organization means any group, association, partnership, 
corporation, or other legal entity owned or controlled by a federally 
recognized Indian Tribe or Tribes, or a majority of whose members are 
members of federally recognized Indian Tribes.
    (o) Indian Tribe or Tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony, or community which is recognized as eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians.
    (p) Local school board, when used with respect to a Bureau school, 
means a body chosen in accordance with the laws of the Tribe or Alaska 
Native entity to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school, except that in 
schools serving a substantial number of students from different Tribes 
or Alaska Native entities the members shall be appointed by the 
governing bodies of the Tribes and entities affected; and, the number of 
such members shall be determined by the Director in consultation with 
the affected Tribes and entities.
    (q) Post-secondary education means any education program beyond the 
age of compulsory education, including higher education, career, 
vocational, and technical.
    (r) Tribal Organization means an organization composed of or duly 
representing Tribal governments which may be national or regional in 
scope and function.



Sec. 32.3  Mission statement.

    Recognizing the special rights of Indian Tribes and Alaska Native 
entities and the unique government-to-government relationship of Indian 
Tribes and Alaska Native villages with the Federal Government as 
affirmed by the United States Constitution, U.S. Supreme Court 
decisions, treaties, Federal statutes, and Executive Orders, and as set 
out in the Congressional declaration in sections 2 and 3 of the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal 
of the Federal

[[Page 131]]

government to provide comprehensive education programs and services for 
Indians and Alaska Natives. As acknowledged in section 5 of the Indian 
Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 3069; 25 U.S.C. 
1901), in the Federal Government's protection and preservation of Indian 
Tribes and Alaska Native villages and their resources, there is no 
resource more vital to such Tribes and villages than their young people 
and the Federal Government has a direct interest, as trustee, in 
protecting Indian and Alaska Native children, including their education. 
The mission of the Bureau of Indian Affairs, Office of Indian Education 
Programs, is to provide quality education opportunities from early 
childhood through life in accordance with the Tribes' needs for cultural 
and economic well-being in keeping with the wide diversity of Indian 
Tribes and Alaska Native villages as distinct cultural and governmental 
entities. The Bureau shall manifest consideration of the whole person, 
taking into account the spiritual, mental, physical and cultural aspects 
of the person within family and Tribal or Alaska Native village 
contexts.



Sec. 32.4  Policies.

    In carrying out its Education mission, the Assistant Secretary for 
Indian Affairs through the Director shall:
    (a) Policy making. (1) Assure that no new policy shall be 
established nor any existing policy changed or modified without 
consultation with affected Tribes and Alaska Native Government entities.
    (2) Be guided in policy formulation and funding priorities, 
including the proposing and awarding of contracts and grants, by 
periodic and systematic consultation with governing bodies of Tribes and 
Alaska Native entities.
    (3) Ensure that Indian Tribes and Alaska Native entities fully 
exercise self-determination and control in planning, priority-setting, 
development, management, operation, staffing and evaluation in all 
aspects of the education process.
    (4) Ensure that each agency or local school board shall be 
authorized and empowered to function as the policy making body for the 
school, consistent with the authority granted by the tribes or Alaska 
Native entity(ies) served by the school(s).
    (b) Student rights. Ensure the constitutional, statutory, civil and 
human rights of all Indian and Alaska Native students, and respect the 
role of Tribal judicial systems where appropriate including, for 
example, ensuring that students have the right to be free from cruel and 
unusual punishment and that all disciplinary procedures shall be 
consistent with appropriate customs and practices of the appropriate 
Indian Tribe or Alaska Native village.
    (c) Equity funding. Assure that resources for all education programs 
are equitably distributed for the benefit of all Indian and Alaska 
Native students, taking into account special educational needs where 
they exist, as further described in part 39 of this subchapter.
    (d) Direction of programs. Ensure that the education function be 
structured in such a manner that all matters relating to the operation 
of education programs be administered by or be under the direction of 
education personnel.
    (e) Respect for family. Promote, respect and defend the cohesiveness 
and integrity of the family, and Tribal and Alaska Native community, as 
they relate to the educational and social prerogatives of the Tribes and 
Alaska Native entities.
    (f) Religious freedom. Promote and respect the right to cultural 
practices and religious freedom for all students, consistent with Tribal 
and Alaska Native entities' wishes and with the provisions of the 
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42 
U.S.C. 1996).
    (g) Tribal rights regarding governing bodies and planning. (1) 
Develop in consultation with Tribes and Alaska Native entities a plan to 
include their direct involvement in short and long-range planning of 
Bureau operated post-secondary schools through the formation of policy 
making governing boards.
    (2) Encourage and defend the right of the Tribes and Alaska Native 
entities to govern their own internal affairs in all matters relating to 
education, and their right to determine the equitable

[[Page 132]]

and appropriate composition of governing boards at Bureau off-
reservation and post-secondary schools.
    (h) Multilingual education. Provide for a comprehensive 
multicultural and multilingual educational program including the 
production and use of instructional materials, culturally appropriate 
methodologies and teaching and learning strategies that will reinforce, 
preserve and maintain Indian and Alaska Native languages, cultures, and 
histories which school boards, Tribes and Alaska Native entities may 
utilize at their discretion.
    (i) Choice of school. Afford Indian and Alaska Native students the 
opportunity to attend local day schools and other schools of choice and 
the option to attend boarding schools when the student and parent or 
guardian determine it is in the student's best interest and consistent 
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-
608) except that, residential schools shall not be used as substitutes 
for providing adequate local family social services. Each school shall 
establish its attendance area in cooperation with neighboring schools.
    (j) Tribal education plans. Assist Tribes and Alaska Native entities 
at their request in the development of Departments of Education, 
education codes, and comprehensive education plans.
    (k) Advocacy and coordination. (1) Serve as an advocate for Indian 
Tribes and Alaska Native entities in education matters before the 
Federal, State and local governments.
    (2) Assume an assertive role in coordinating comprehensive support 
for Indian and Alaska Native students internally and from other agencies 
in education, mental and physical health, juvenile justice, job 
training, including apprenticeship programs and other related Federal, 
State and local programs and services.
    (3) Serve as an advocate and carry out responsibilities for Indian 
and Alaska Native students in public and other non-Bureau operated 
schools consistent with the wishes of the appropriate Indian Tribes and 
Alaska Native entities, particularly in regard to Impact Aid (Pub. L. 
81-874), Johnson-O'Malley, and all Elementary and Secondary Education 
Act programs.
    (l) Student assessment. Establish and maintain a program of research 
and development to provide accurate and culturally specific assessment 
instruments to measure student performance in cooperation with Tribes 
and Alaska Native entities.
    (m) Recruitment of Indians. Adopt procedures to insure that 
qualified Indian and Alaska Native educators are recruited for positions 
appropriate to their cultural background and qualifications.
    (n) Priorities in contracts and grants. Provide financial support 
through contracts, grants or other funding mechanisms with first 
priority given to the Tribes and Alaska Native entities, Tribal 
organizations, Tribally controlled community colleges, and Indian or 
Alaska Native professional or technical assistance organizations which 
have the sanction of the benefitting Tribes and Alaska Native entities.
    (o) Community school concept. Promote the community school concept 
by encouraging year around multi-use of educational facilities, 
equipment and services for Tribal, Alaska Native village, and community 
development.
    (p) Education close to home. Provide day and residential educational 
services as close to an Indian or Alaska Native student's home as 
possible, except when a student elects to attend a school elsewhere for 
specialized curricular offerings or services.
    (q) Tribal notification and involvement and program flexibility. (1) 
Notify Indian Tribes and Alaska Native entities of proposed, pending or 
final Federal legislation, appropriations, Solicitor's and Attorney 
General's opinions and court decisions affecting Indian and Alaska 
Native education for the purposes of information and consultation, 
providing them ready access at the local level to all evaluations, data 
records, reports and other relevant information, consistent with the 
provisions of the Privacy and Freedom of Information Acts.
    (2) Implement rules, regulations, procedures, practices, and 
standards to insure flexibility in the exercise of local Tribal or 
Alaska Native village options, and provide for input in periodic 
reviews, evaluations, and revisions to

[[Page 133]]

meet changing needs and circumstances.
    (r) Career and higher education. (1) Ensure to the extent possible 
that all students who choose to pursue career and post-secondary 
education, including but not limited to, undergraduate and graduate 
programs, or preparation for skilled trades, receive adequate academic 
or other preparation, at the schools of their choice, assuring that 
students are provided adequate support services to enable them to meet 
their educational goals.
    (2) Extend to Tribes and Alaska Native entities the prerogative of 
determining those critical professions and fields of study in post-
secondary education which are of the highest priority to meet their 
economic and cultural goals.
    (s) Planning, maintenance and use of facilities. (1) Ensure that the 
needs of the students and Tribal or Alaska Native community will receive 
first priority in the planning, design, construction, operation and 
maintenance of Bureau schools and residential facilities, rather than 
other considerations, such as ease of maintenance, and that these 
facilities assure a supportive environment for learning, living and 
recreation.
    (2) Maintain all school and residential facilities to meet 
appropriate Tribal, State or Federal safety, health and child care 
standards. If a conflict exists in these standards, the Federal standard 
shall be followed; in the absence of a Federal standard, the Tribal 
standard shall be followed. In case of conflict, any such Tribal health 
or safety standards shall be no greater than any otherwise applicable 
State standard.
    (t) Alternative, innovative and exemplary programs. Vigorously 
encourage and support alternative, innovative and exemplary programs 
reflecting Tribal or Alaska Native village specific learning styles, 
including but not limited to, parent-based early childhood education 
programs, adult and vocational technical education, library and media 
services, special education including programs for handicapped, gifted 
and talented students, summer programs, and career development.
    (u) Training. Provide support and technical assistance at all levels 
for the training of duly sanctioned Tribal and Alaska Native education 
representatives involved in educational decisionmaking, including pre-
service and in-service training for educators.
    (v) Tribally controlled community colleges. Assist Tribes and Alaska 
Natives in their planning, designing, construction, operation and 
maintenance of Tribally controlled community colleges, consistent with 
all appropriate legislation. (See part 41 of this subchapter.)
    (w) Equal opportunity. Establish and enforce policies and practices 
to guarantee equal opportunity and open access to all Indian and Alaska 
Native students in all matters relating to their education programs 
consistent with the provisions of the Privacy and Freedom of Information 
Acts.
    (x) Accountability, evaluation of MIS. (1) Enforce a strict standard 
of fiscal, programmatic and contract accountability to the Tribes and 
Alaska Native entities and assist them in the development of their own 
standards of accountability and carry out annual evaluations of all 
Bureau-operated or funded education programs.
    (2) Provide and make available a computerized management information 
system which will provide statistical information such as, but not 
limited to, student enrollment, curriculum, staff, facilities, student 
assessments and related educational information.
    (y) Accreditation. (1) Encourage and assist all Bureau and contract 
schools to attain appropriate State, regional, Tribal or national 
accreditation.
    (2) Assist and promote the establishment of Indian regional and/or 
national accrediting associations for all levels of Indian Education.
    (z) Eligibility for services. Serve Indian and Alaska Native 
students who are recognized by the Secretary of the Interior as eligible 
for Federal services, because of their status as Indians or Alaska 
Natives, whose Indian blood quantum is \1/4\ degree or more. In the 
absence of other available facilities, children of non-Indian Bureau 
personnel or other non-eligibles may be served subject to the provisions 
of 25 U.S.C. 288 and 289.
    (aa) Appropriations. Aggressively seek sufficient appropriations to 
carry out

[[Page 134]]

all policies herein established subject to the president's budget and 
the Department's budgetary process.



Sec. 32.5  Evaluation of implementation of Pub. L. 95-561.

    The Director, Office Indian Education Programs will develop 
guidelines for evaluating all functional and programmatic 
responsibilities associated with title XI of the Education Amendments of 
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as 
provided in section 1136, of Pub. L. 95-561 include a statement of the 
specific program toward implementing these policies.



PART 33_TRANSFER OF INDIAN EDUCATION FUNCTIONS--Table of Contents




Sec.
33.1 Definitions.
33.2 Policy.
33.3 Delegation of authority.
33.4 Redelegation of authority.
33.5 Area education functions.
33.6 Agency education functions.
33.7 Implementing procedures.
33.8 Realignment of area and agency offices.
33.9 Development of procedures.
33.10 Issuance of procedures.

    Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978 
(92 Stat. 2143, 2391; 25 U.S.C. 2006).

    Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 33.1  Definitions.

    (a) Agency means that organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    (b) Early childhood means education activities serving the 0 to 8 
year old child, including pre-natal, child care, kindergarten, homebase, 
homebound, and special education programs.
    (c) Elementary and secondary education means those programs serving 
the child from grade one through grade twelve.
    (d) Operating level means the organizational level at which direct 
educational services are performed.
    (e) Personnel directly and substantially involved means those 
persons who provide services which affect the operation of Indian 
education programs, including (but not limited to) school or institution 
custodial or maintenance personnel, and whose services for Indian 
education programs require the expenditure of at least 51 percent of the 
employee's working time.
    (f) Post-secondary means education programs that are provided for 
persons past the age for compulsory education to include continuing 
education, higher education, undergraduate and graduate, career and 
adult education. As used in this Act, the term Post-Secondary shall 
include those Bureau of Indian Affairs programs operated at Southwestern 
Indian Polytechnic Institute, the Institute of American Indian Arts, and 
Haskell Indian Junior College, and those operated at Tribally controlled 
community colleges under Pub. L. 95-471.



Sec. 33.2  Policy.

    It is the policy of the Department of the Interior that:
    (a) Indian control of Indian affairs in all matters relating to 
education shall be facilitated.
    (b) Authority to perform education functions shall be delegated 
directly from the Assistant Secretary-Indian Affairs to the Director, 
Office of Indian Education Programs.
    (c) Administrative authority shall be compatible with program 
authorities; and, both shall be delegated to the operating level to 
assure efficient and effective delivery of education services to Indian 
children, youth, and adults.
    (d) The Director, Office of Indian Education Programs shall 
supervise the operation of Indian education program personnel at the 
Arena, Agency, and the three Bureau of Indian Affairs post-secondary 
institutions.
    (e) Indian Education program functions to be performed at the Area 
office level shall include those dealing with higher education, Johnson-
O'Malley aid to non-Bureau schools, off-reservation boarding schools, 
those education program operations serving tribes from more than one 
Agency except those at the three post-secondary institutions,

[[Page 135]]

on-reservation education functions located at an Agency where no 
educational personnel are assigned, education contract operations, and 
adult education.



Sec. 33.3  Delegation of authority.

    The administrative and programmatic authorities of the Assistant 
Secretary--Indian Affairs pertaining to Indian education functions shall 
not be delegated to other than the Director, Office of Indian Education 
Programs. The Assistant Secretary shall publish delegations of 
authorites to the Director in the Bureau of Indian Affairs Manual after 
the effective date of these regulations.



Sec. 33.4  Redelegation of authority.

    The authorities of the Assistant Secretary--Indian Affairs as 
delegated to the Director, Office of Indian Education Programs may be 
redelegated by the Director to a Bureau of Indian Affairs Agency 
Superintendent for Education, to a Bureau Area Education Programs 
Director, or to a President of a Bureau of Indian Affairs post-secondary 
education institution.



Sec. 33.5  Area education functions.

    A Bureau Area Education Programs Director shall perform those Bureau 
of Indian Affairs education functions related to Johnson-O'Malley aid to 
non-Bureau schools, higher education, Bureau peripheral dormitories, 
adult education, off-reservation residential schools, on-reservation 
functions located at an Agency where no education personnel are 
assigned, education contract operations, and those education program 
operations serving Tribes from more than one Agency, except those of the 
Bureau's post-secondary institutions.



Sec. 33.6  Agency education functions.

    A Bureau Agency Superintendent for Education shall perform those 
education functions related to elementary and secondary education, early 
childhood education, peripheral dormitories which have been supervised 
prior to Pub. L. 95-561, and exceptional education programs as defined 
in 25 CFR part 32. This section shall not be construed to remove higher 
education, adult education and/or Johnson-O'Malley programs currently 
administered at the Agency level. Further, the Director under the 
authority of Sec. 33.4 will periodically review Area programs such as 
higher education, adult education, and Johnson-O'Malley for 
consideration to assign to Agency level administration.



Sec. 33.7  Implementing procedures.

    (a) The Assistant Secretary--Indian Affairs shall:
    (1) Implement the transfer for Indian education functions from the 
jurisdiction of Agency Superintendents and Area Office Directors to the 
Director, Office of Indian Education Programs.
    (2) Modify existing descriptions of positions for Area Office 
Directors, Agency Superintendents, and all other personnel directly and 
substantially involved with the provisions of education services by the 
Bureau of Indian Affairs.
    (b) The Director, Office of Indian Education Programs shall:
    (1) For Area, Agency, and Bureau of Indian Affairs postsecondary 
institutional personnel:
    (i) Properly list the duties of each employee required to perform 
functions redelegated by the Director;
    (ii) Define the responsibilities for monitoring and evaluating 
education programs; and
    (iii) Exercise supervision of these employees.
    (2) Define responsibilities for employees providing technical and 
coordinating assistance for support services to the Director, Office of 
Indian Education Programs and his/her subordinates, including 
procurement, contracting, personnel, and other administrative support 
areas.

[44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 33.8  Realignment of area and agency offices.

    The Assistant Secretary--Indian Affairs shall implement Bureau of 
Indian Affairs Area Office and Agency Office reorganizations required to 
structure these offices consistent with education program activities to 
be undertaken at those levels.

[[Page 136]]



Sec. 33.9  Development of procedures.

    The Director, Office of Indian Education Programs shall prepare and 
promulgate procedures to govern the provision of support services by the 
Bureau of Indian Affairs for the education function. These procedures 
shall be consistent with existing laws, regulations, Executive Orders, 
and Departmental policies governing administrative support services. 
These provisions shall be prepared in consultation with those personnel 
within the Bureau of Indian Affairs who are responsible to the 
Commissioner of Indian Affairs for providing support services.



Sec. 33.10  Issuance of procedures.

    The Assistant Secretary--Indian Affairs, directly or through the 
Commissioner of Indian Affairs, shall issue procedures in the Bureau of 
Indian Affairs Manual governing the provision of support services to the 
Bureau's Education Office function.



PART 36_MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN 
CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS--Table of Contents


                      Subpart A_General Provisions

Sec.
36.1 Purpose, scope, and information collection requirements.
36.2 Applicability.
36.3 Definitions.

                    Subpart B_Educational Management

36.10 Standard I--Philosophy and goals.
36.11 Standard II--Administrative requirements.
36.12 Standard III--Program needs assessment.
36.13 Standard IV--Curriculum development.

                Subpart C_Minimum Program of Instruction

36.20 Standard V--Minimum academic programs/school calendar.
36.21 Standard VI--Kindergarten instructional program.
36.22 Standard VII--Elementary instructional program.
36.23 Standard VIII--Junior high/middle school instructional program.
36.24 Standard IX--Secondary instructional program.

               Subpart D_Student Instructional Evaluation

36.30 Standard X--Grading requirements.
36.31 Standard XI--Student promotion requirements.
36.32 Standard XII--Graduation requirements for a high school diploma.

                     Subpart E_Instructional Support

36.40 Standard XIII--Library/media program.
36.41 Standard XIV--Textbooks.
36.42 Standard XV--Counseling services.
36.43 Standard XVI--Student activities.

              Subpart F_Evaluation of Educational Standards

36.50 Standard XVII--School program evaluation and needs assessment.
36.51 Standard XVIII--Office of Indian Education Programs and Agency 
          monitoring and evaluation responsibilities.

                    Subpart G_Compliance and Waivers

36.60 Compliance for minimum academic standards.
36.61 Waivers and revisions.

                  Subpart H_National Dormitory Criteria

36.70 Scope of subpart.
36.71 General provisions.
36.72 Elementary level dormitories.
36.73 Secondary level dormitories.
36.74 Homeliving (dormitory operations).
36.75 Space and privacy.
36.76 Compliance for the National Criteria for Dormitory Situations.
36.77 Waivers and revisions.

    Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 
U.S.C. 2901, Title I of P.L. 101-477.

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 36.1  Purpose, scope, and information collection requirements.

    (a) The purpose of this rule is to establish minimum academic 
standards for the basic education of Indian children for Bureau-operated 
schools and for those Indian-controlled contract schools which adopt 
these standards and to establish national criteria for dormitory 
situations for schools operated by the Bureau of Indian Affairs

[[Page 137]]

and for Indian-controlled contract schools operating dormitories.
    (b) These academic standards and dormitory criteria will take effect 
thirty (30) days after the date of their publication in the Federal 
Register. The Bureau of Indian Affairs intends to review and evaluate 
the applicability of the academic standards and dormitory criteria under 
this part after two years and make appropriate revisions.
    (c) The information collection requirement contained in Sec. 
36.61(a) has been approved by the Office of Management and Budget under 
44 U.S.C. 3507 and assigned clearance number 1076-0092. The information 
is being collected to evaluate waiver request(s) from tribal 
government(s) and school board(s). The information will be used to 
ascertain the approval of academic waiver request. The obligation to 
respond is mandatory under 25 U.S.C. 2001. The information collection 
requirements contained in Sec. Sec. 36.71(g), 36.74(f), and 36.76(b) of 
this rule are not required to be approved by the Office of Management 
and Budget since less than ten persons or tribes are affected by the 
information collection requirement of this rule. However, when ten or 
more persons or tribes become affected by this requirement, the Bureau 
will submit an approval request.



Sec. 36.2  Applicability.

    (a) The minimum academic standards for the basic education of Indian 
children established under this part, subparts B through G, are 
mandatory for all Bureau of Indian Affairs operated schools unless a 
tribal governing body or the local school board, if so designated by the 
tribal governing body, waives, in part or in whole, the standards 
established under this part. When a tribe(s) formally takes action to 
waive, in total or in part, standards contained in this part, proof of 
such action shall be forwarded to the Agency Superintendent for 
Education (ASE) or area Education Programs Administrator (EPA). Within 
15 days of receipt of such documentation the ASE or EPA shall notify, in 
writing, the parents or legal guardians whose children are attending the 
school(s) affected.
    (b) The minimum academic standards for the education of Indian 
children established under subparts B through G are not applicable to 
Indian-controlled contract schools unless the Indian-controlled contract 
school board formally adopts them in whole or in part. The Bureau will 
not refuse to enter into a contract on the basis of failure to meet 
these standards but will, through contracting procedures, assist the 
school in reaching compliance, if so requested by the Indian-controlled 
contract school board.
    (c) The national criteria for dormitory situations established under 
subpart H will serve as a minimum requirement and shall be mandatory for 
all Bureau-operated and Indian-controlled contract schools.
    (d) Standards and criteria contained under this part will serve as 
minimum requirements for the regular school educational program.
    (e) In states where additional minimum academic standards exist or 
are established, those state standards shall also apply.



Sec. 36.3  Definitions.

    For purposes of this part, the following definitions apply:
    Accreditation means a school has received an official decision by 
the State(s) department(s) of education, or another recognized agency 
having official authority, that, in its judgment, the school has met the 
established standards of quality.
    Agency means the current organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    Agency school board as defined in sec. 1139(1), Pub. L. 95-561, 
means a body, the members of which are appointed by the school boards of 
the schools located within such Agency. The number of such members shall 
be determined by the Director in consultation with the affected tribes. 
In Agencies serving a single school, the school board of that school 
shall function as the Agency school board.
    Agency Superintendent for Education means the Bureau official in 
charge of education functions at an Agency and to whom the school 
supervisor(s) and other educators under the Agency's jurisdiction 
report.

[[Page 138]]

    Area Education Programs Administrator means the Bureau official in 
charge of Bureau education programs and functions in a Bureau Area 
Office and is responsible for off-reservation residential schools, and, 
in some cases, peripheral dormitories and on-reservation day schools not 
receiving services from the Agency Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Authentic assessment means the testing of higher order thinking 
skills by monitoring performance of tasks requiring analysis, 
creativity, and application skills in real life situations.
    Average daily membership (ADM) means the aggregate days membership 
of a given school during a given reporting period divided by the number 
of days school is in session during this period. Only days on which the 
students are under the guidance and direction of teachers shall be 
considered as days in session. The reporting period is generally a given 
regular school term.
    Basic academic skills means the abilities acquired by observation, 
study, or experience in mental and/or physical performance (e.g., 
proficiency in planning and investigating, operational techniques, 
comprehension, organization, execution, remembrance and application of 
knowledge to acquire a desired result) basic to the mastery of school 
work or other activity.
    Basic education means those components of education emphasizing 
literacy in language arts, mathematics, natural and physical sciences, 
history, and related social sciences.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Certification means the general process by which the State or Agency 
authorized by the State adjudges and stipulates that an individual meets 
the established standards which are prerequisite to employment for a 
teacher or administrator in education.
    Competency means having the requisite abilities, skills, or a 
specified level of mastery.
    Computer literacy used here means the general range of skills and 
understanding needed to function effectively in a society increasingly 
dependent on computer and information technology.
    Content area means the usual school subjects of instruction, such 
as: Language arts, mathematics, science, social studies, fine arts, 
practical arts, health, and physical education.
    Counselor means a staff member, including those in both academic and 
dormitory situations, who helps the students to understand educational, 
personal, and occupational strengths and limitations; to relate 
abilities, emotions, and aptitudes to educational and career 
opportunities; to utilize abilities in formulating realistic plans; and 
to achieve satisfying personal and social development.
    Course of study means a written guide prepared by administrators, 
supervisors, consultants, and teachers of a school system or school, as 
an aid to teaching a given course or an aspect of subject-matter content 
to a given category of pupil.
    Criterion-referenced test means an achievement test designed to 
measure specific skills within a subject area. Test results indicate 
which skills a student has or has not learned.
    Days means calendar days.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau.
    Dormitory means a facility which provides students boarding and 
lodging on a temporary residential basis for the purpose of attending a 
Bureau-operated or Indian-controlled contract or public school.
    Dormitory manager means a staff member who manages the day-to-day, 
24-hour operation of one or more dormitories.
    Elementary school is defined as any combination of grades K-8 except 
when any of these grades are included in the junior high or middle 
school level.
    Exceptional child program means a program for students who are 
eligible to receive education and related services as defined by 25 CFR 
39.11(i).
    Feeder school means a school whose exiting students are absorbed by 
a school offering instruction on the next higher grade level.
    Formative evaluation is an evaluation of progress during the 
implementation of a program. Its purpose is to provide

[[Page 139]]

immediate feedback on results to enable modifying the processes used in 
order to enhance success and prevent failure.
    Goals means a statement of what the school system is attempting to 
do to meet the comprehensive educational needs and interests of its 
pupils, in accordance with its statement of philosophy.
    Grade means the portion of a school program which represents the 
work of one regular school year; identified by a designation such as 
kindergarten, grade 1 or grade 10.
    Grade level is a designation applied to that portion of the 
curriculum which represents the work of one regular school year.
    High school is defined as grades nine through twelve, except when 
grade nine is included in the junior high or middle school 
organizational unit.
    Higher order thinking skills (or advanced skills) means skills such 
as reading comprehension, written composition, and mathematical 
reasoning. They differ from basic or discrete skills such as phonetic 
decoding and arithmetic operations.
    Indian-controlled contract school means a school that is operated by 
a tribal organization and funded under a contract with the Bureau.
    Indian student means a student who is a member of an Indian tribe 
and is one-quarter (\1/4\) or more degree of Indian blood quantum.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony 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 (85 Stat. 688), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Intense residential guidance means the program for residential 
students who need special residential services due to one or more of the 
problems as stated in 25 CFR 39.11(h).
    Junior high or middle school is defined as grades seven and eight, 
but may include grade six when it is not included in the elementary 
school level and/or grade nine when it is not included in the high 
school level.
    Kindergarten means a group of students or a class that is organized 
to provide educational experiences for children for the year immediately 
preceding the first grade.
    Librarian means a certificated school employee whose principal 
responsibilities include selection, acquisition, preparation, 
cataloging, and circulation of books and other printed materials; 
planning the use of the library by teachers and students; and 
instructing students in the use of library books and materials, whether 
the library is maintained separately or as a part of an instructional 
materials center.
    Local school board when used with respect to a Bureau-operated 
school means a body chosen in accordance with the laws of the tribe to 
be served or, in the absence of such laws, the body elected by the 
parents of the Indian children attending a Bureau-operated school. In 
schools serving a substantial number of students from different tribes, 
the members shall be appointed by the governing bodies of the tribes 
affected and the number of such members shall be determined by the 
Director in consultation with the affected tribes.
    Objectives means a statement of the general, long-range aims and the 
specific, short-range aims which indicate what the school is attempting 
to do to meet the needs of the students in accordance with the 
philosophy, goals, and policies of the school system.
    Paraprofessional means a staff member who works with and is under 
the supervision of a professional staff member but who does not have 
full professional status, e.g., teacher aide. The term denotes a level 
of knowledge and skills possessed by an individual or required of an 
individual to perform an assignment. The level of skills is usually at a 
predetermined minimum level.
    Parent means a natural parent or guardian or a person legally acting 
as parent.
    Peripheral dormitory is a facility which provides students boarding 
and lodging during the school year for the purpose of attending a public 
school.

[[Page 140]]

    Regular program student means all students including those 
determined to be eligible for services as defined under the Exceptional 
Child Program, 25 CFR 39.11(i).
    Residential school means an educational institution in which 
students are boarded and lodged as well as taught.
    Residential Services under Exceptional Child Program means a program 
providing specialized residential care as determined by 25 CFR 39.11(i).
    School means an educational institution, including elementary, 
junior high or middle, high school, peripheral, cooperative, and 
contract schools serving students in grades Kindergarten through 12 and 
as further defined under 25 CFR 39.2(q).
    School board means an Agency or local school board.
    School day, instructional day, or teaching day is a day on which the 
school is open and students are under the guidance and direction of 
teachers in instructional activities where the minimum number of 
instructional hours are met.
    School Supervisor means the official in charge of a school and/or 
peripheral dormitory who reports to an Agency School Superintendent or 
an Area Education Programs Administrator, as appropriate.
    Secretary means the Secretary of the Interior.
    Self-contained class means a class having the same teacher or team 
of teachers for all or most of the daily session.
    Standard means the established criterion and/or specified 
requirement which must be met and maintained.
    Summative evaluation means a systematic analysis of the results or 
products of a program after it is completed. Its purpose is to determine 
the extent to which the objectives of the program have or have not been 
achieved. One form of summative evaluation compares results with those 
of another ``control'' program using different procedures. Other forms 
compare results with past results or predetermined target outcomes.
    Teacher means a certified staff member performing assigned 
professional activities in guiding and directing the learning 
experiences of pupils in an instructional situation.
    Unit/Unit of instruction means a major subdivision of instruction 
generally composed of several topics including content and learning 
experiences developed around a central focus such as a limited scope of 
subject matter, a central program, one or more related concepts, one or 
more related skills, or a combination of these. One unit equals one full 
year of instruction in a subdividion thereof. Unit and credit shall be 
used interchangeably.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



                    Subpart B_Educational Management



Sec. 36.10  Standard I--Philosophy and goals.

    (a) Each school shall develop a written mission statement and 
philosophy of education that addresses the accumulation of knowledge and 
development of skills, interests, appreciations, ideals, and attitudes 
within the school's total educational program. A statement of expected 
outcomes shall outline what the school is attempting to do to meet the 
needs and interests of its students and community in accordance with the 
school's mission statement and philosophy.
    (b) The statement of philosophy and goals shall be developed with 
the involvement of students, parents, lay citizens, school staff, and 
tribe(s) and shall be formally adopted by the local school board.
    (c) The philosophy and goals shall be reviewed annually and revised 
as necessary by each school.
    (d) A copy of the philosophy and goals shall be submitted to the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.
    (e) Informational provisions shall be developed in the form of a 
manual, handbook, brochure, or other written document(s) of the minimum 
academic standards of the school's programs and the basic rules and 
procedures of the school. The staff, students, and parents shall receive 
the written document or documents and have same explained to all who 
request explanation. The topics

[[Page 141]]

covered in the document(s) shall include but not be limited to the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered;
    (3) A brief explanation of curricular offerings;
    (4) A copy of student rights handbook;
    (5) Basic practices related to:
    (i) Grading system;
    (ii) Graduation requirements, if applicable;
    (iii) Attendance policies;
    (iv) Special programs at the school; and
    (v) Student activities available for students.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.11  Standard II--Administrative requirements.

    (a) Staffing. Each school shall, at a minimum, meet the following 
requirements:
    (1) The overall school ratio of regular program students to regular 
program teachers in self-contained classrooms shall not exceed the 
following except under the conditions set forth in paragraphs (a)(4) (i) 
and (ii) of this section. Average daily membership (ADM) shall be used 
in meeting the following ratios.

------------------------------------------------------------------------
                           Level                                Ratio
------------------------------------------------------------------------
Kindergarten...............................................         20:1
1st grade--3rd grade.......................................         22:1
4th grade--high school.....................................         25:1
------------------------------------------------------------------------

    (2) Multi-grade classrooms that cross grade-level boundaries (e.g., 
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8, 
grades shall be consolidated to meet the teacher ratios listed above.
    (3) The daily teaching load per teacher in departmentalized classes 
shall not exceed 150 students (ADM) except in activity type classes such 
as music and physical education.
    (4) Schools exceeding these specific staffing ratios for over 30 
consecutive days during one school year shall submit a justification for 
a request for a waiver to the Director, through the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate, which may be approved for a period not to exceed one 
school year and for the following reasons:
    (i) Additional classroom space is not available for establishing 
another class; or
    (ii) The school, Agency, Area and Office of Indian Education 
Programs Applicant Supply File has been exhausted and the required 
teacher position cannot be filled. However, efforts to fill the vacancy 
shall be continued.
    (5) Each school shall provide, in the absence of a regular teacher, 
a certified substitute teacher who meets the State substitute teacher 
qualifications. In the event that such a substitute is not available, 
coverage will be provided by a school employee designated by the school 
supervisor. A class cannot have as a teacher an employee without 
teaching credentials for more than 20 school days during any one school 
year.
    (b) Written school enrollment and attendance policies. Each school 
shall have written school enrollment and attendance policies in 
compliance with and/or consistent with 25 CFR 31, Federal Schools for 
Indians, the statutes of the State, and tribal education ordinances.
    (c) Geographic attendance boundaries. Each Agency Superintendent for 
Education shall establish and implement non-overlapping geographic 
attendance boundaries within that Agency for each school within the 
administrative jurisdiction of that Agency. The establishment of such 
geographic boundaries shall require coordination with contiguous 
Agencies within the Area and consultation with the Agency or other 
relevant school boards and/or tribes and shall be reviewed each year to 
appropriately adjust for geographic changes in enrollment, changes in 
school capacities, and improvement of day school opportunities for 
students. The Director shall establish and implement geographic 
attendance boundaries for each off-reservation boarding school under 
his/her administrative jurisdiction. The establishment of geographics 
boundaries shall require coordination with other Area Education Programs 
Administrators similarly affected by the

[[Page 142]]

requirement of this part, the affected tribes, and the Director.
    (d) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of the state in which they attend 
school or standards of the Indian Health Service.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.12  Standard III--Program needs assessment.

    The policy and procedures of each school and its curricula shall be 
developed and revised based on an assessment of educational needs. This 
needs assessment shall be conducted at least every seven (7) years at 
the same frequency as required in Sec. 36.50, School Program 
Evaluation. This assessment shall include at least the following:
    (a) A clear statement of student educational goals and objectives. A 
student educational goal is defined as a statement of the knowledge, 
skills, attitudes, or concepts students are expected to exhibit upon 
completion of a grade level. Student educational objectives are defined 
as statements of more specific knowledge, skills, attitudes, or concepts 
students must exhibit in order to achieve the goal.
    (b) The collection of appropriate data from which valid 
determinations, judgments, and decisions can be made with respect to the 
status of the educational program, e.g.,
    (1) Perceptions of the parents, tribes, educators, and the students 
with regard to the relevance and importance of the goals.
    (2) The extent to which educational goals and objectives have been 
achieved.
    (3) The data developed as a result of the evaluation outlined in 
Sec. 36.50 School Program Evaluation.
    (c) A statement of educational needs which identifies the difference 
between the current status of students and the desired goals for the 
students.
    (d) A plan of action to remediate assessed needs.



Sec. 36.13  Standard IV--Curriculum development.

    (a) Each school shall implement an organized program of curriculum 
development involving certified and non-certified staff and shall 
provide the opportunity for involvement by members of the local 
community.
    (b) Curriculum development program activities shall be based on an 
analysis of school programs and shall be related to needs assessment and 
evaluation.
    (c) Each school shall involve staff and provide the opportunity for 
involvement by the tribal community in planning programs, objectives, 
and activities which meet student/teacher needs.



                Subpart C_Minimum Program of Instruction



Sec. 36.20  Standard V--Minimum academic programs/school calendar.

    (a) Each school shall meet the applicable minimum program of 
instruction provided in this subpart and, where applicable, the 
graduation requirements under Sec. 36.32. A school that has difficulty 
in meeting these minimum academic program requirements may seek 
alternative ways of meeting some portions of the minimum program. For 
example, courses may be taught in alternate years. Should a school wish 
to adopt alternative measures, the school shall submit a request for 
approval to the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, for the adoption of alternative 
measures with a written justification as to how this action will meet 
the applicable minimum program of instruction.
    (b) Length of school term and day. All schools shall provide an 
educational program of studies which is conducted for not less that 180 
instructional days per school term. Regular program students shall be in 
instructional activities, exclusive of lunch (which must be at least 30 
minutes a day), in accordance with the following minimums: 
Kindergarten--2.5 instructional hours/day; grades 1-3--4.5 instructional 
hours/day; grades 4-6--5.0 instructional hours/day; grades 7-12--5.5 
instructional hours/day.
    (c) If an emergency arises from an uncontrollable circumstance 
during the school day which results in the dismissal of students by the 
school administration, the day may be counted as a

[[Page 143]]

school day provided that three-fourths of the instructional hours are 
met.
    (d) The educational program shall include multi-culture and multi-
ethnic dimensions designed to enable students to function effectively in 
a pluralistic society.
    (1) The school's language arts program shall assess the English and 
native language abilities of its students and provide instruction that 
teaches and/or maintains both the English and the primary native 
language of the school population. Programs shall meet local tribal 
approval.
    (2) The school program shall include aspects of the native culture 
in all curriculum areas. Content shall meet local tribal approval.
    (3) The school program shall assess the learning styles of its 
students and provide instruction based upon that assessment. The method 
for assessing learning styles shall be determined at the local level.
    (4) The school program shall provide for at least one field trip per 
child per year to broaden social and academic experiences.
    (e) All intraschool programs (e.g., library, instructional labs, 
physical education, music, etc.) which are directly related to or affect 
student instruction shall provide services from the beginning of the 
school term through the final class period at the close of the school 
term.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.21  Standard VI--Kindergarten instructional program.

    (a) The curriculum for kindergarten shall provide children with 
experiences which emphasize language development, native language where 
necessary as determined by 25 CFR 39.11(g), and performance of the 
requirements in paragraph (b) of this section. Such programs shall 
assist children in developing positive feelings toward themselves and 
others.
    (b) A kindergarten instructional program shall include but not be 
limited to:
    (1) Language (observing, listening, speaking).
    (2) Exploration of the environment (number, space and time 
relationships, natural science).
    (3) Psychomotor and socialization development.
    (4) Development of imaginative and creative tendencies.
    (5) Health education inclusive of the requirements contained in the 
Act of May 20, 1886, 24 Stat. 69.



Sec. 36.22  Standard VII--Elementary instructional program.

    (a) The elementary instruction programs, grades one through six, 
shall include but need not be limited to:
    (1) Language arts.
    (2) Mathematics.
    (3) Social studies.
    (4) Sciences.
    (5) Fine arts.
    (6) Physical education.
    (b) Each school shall integrate the following content areas into its 
curriculum:
    (1) Career awareness,
    (2) Environmental and safety education,
    (3) Health education (includes requirements contained in 24 Stat. 
69),
    (4) Metric education, and
    (5) Computer literacy.



Sec. 36.23  Standard VIII--Junior high/middle school instructional program.

    (a) The instructional program shall reflect the school's philosophy 
and the needs of the students and the community. It shall be part of a 
progressive development that begins in the elementary program which 
precedes it and continues to the secondary program which follows.
    (b) The curriculum shall include the following required 
instructional content areas at each grade level but need not be limited 
to:
    (1) Language arts. One unit shall be required of each student every 
year.
    (2) Social studies. One unit shall be required of each student every 
year.
    (3) Mathematics. One unit shall be required of each student every 
year.
    (4) Science. One unit shall be required of each student every year.
    (5) Fine arts and practical arts. One unit each shall be required of 
each student in the junior high/middle school instructional program.

[[Page 144]]

    (6) Computer literacy. One unit shall be required of each student in 
the junior high/middle school instructional program.
    (7) Physical education. One unit shall be required of each student 
in the junior high/middle school instructional program.
    (c) The following content areas shall be integrated into the 
curriculum.
    (1) Career exploration and orientation.
    (2) Environmental and safety education.
    (3) Metric education.
    (4) Consumer economics (including personal finances).
    (5) Health education (includes meeting the requirements contained in 
24 Stat. 69).
    (d) Languages other than English are encouraged to be offered as a 
content area beginning at junior high/middle school level.
    (e) Student enrollment in any laboratory or vocational exploration 
class shall be consistent with applicable health and safety standards.



Sec. 36.24  Standard IX--Secondary instructional program.

    (a) The secondary instructional program shall reflect the philosophy 
of the student, tribe, community, and school, and an awareness of the 
changing world.
    (b) The secondary instructional curriculum shall include the 
following content areas:
    (1) Language arts (communication skills).
    (2) Sciences.
    (3) Mathematics.
    (4) Social studies.
    (5) Fine arts and practical arts.
    (6) Physical education.
    (7) Languages other than English.
    (8) Driver education. (See guidelines available from the applicable 
State Department of Education.)
    (9) Vocational education. Curriculum shall be designed and directly 
related to actual occupational trends (national, regional, and local) 
and to introduce and familiarize students with various occupations in 
technology, industry and business, as well as required special skills 
and the training requisites. Programs shall be directed toward assisting 
students in making career choices and developing consumer skills and may 
include the following:
    (i) Vocational exploration,
    (ii) Vocational skill development, and
    (iii) School/on-the-job cooperative education programs.
    (c) The following shall be integrated into the curriculum:
    (1) Consumer economics (including personal finances),
    (2) Metric education,
    (3) Safety education, and
    (4) Health education. (In addition, the program shall meet the 
requirements contained in 24 Stat. 69.)
    (d) The high school program shall provide program coordination with 
feeder schools, career direction, and preparation for the student 
entering independent living through employment, post-secondary 
education, and/or marriage.
    (e) Yearly class schedules shall take into account the graduation 
requirements of each student.
    (f) Student enrollment in any laboratory or vocational class shall 
be consistent with applicable health and safety standards.
    (g) Schools are encouraged to provide alternative programs that lead 
to high school completion for secondary students who do not function 
successfully in the regular academic setting.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



               Subpart D_Student Instructional Evaluation



Sec. 36.30  Standard X--Grading requirements.

    (a) Each school shall implement a uniform grading system which 
assesses a student's mastery of the prescribed objectives of the courses 
of study undertaken. The mastery of prescribed course objectives shall 
be the primary measure of academic attainment for reporting student 
grades on report cards.
    (b) The information derived from student instructional evaluations 
shall be shared with the student and with the parents and shall be used 
to give teachers and students direction for subsequent learning 
activities.

[[Page 145]]

    (c) Parent/teacher and parent/teacher/student conferences focused on 
the student's instructional progress and development shall be held, 
where feasible and practical, to provide an additional means of 
communication between home and school. Residential schools may meet this 
standard by documenting the communication of student grades on report 
cards to parents.
    (d) Each school shall issue a report card to parents of students who 
are under the age of eighteen (18) and to students eighteen (18) years 
of age and older on a regular basis, but not less than four (4) times 
yearly. The report card shall include, but not be limited to, the 
following sections:
    (1) Recommendations and probable promotion status;
    (2) Appropriate signatures and request for return of report cards; 
and
    (3) Student attendance record.
    (e) A summary of each year's final card shall become part of the 
student's permanent school record.



Sec. 36.31  Standard XI--Student promotion requirements.

    Each school shall establish and implement a promotion policy which 
shall be submitted to and approved by the local school board and Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate. The requirements shall include, but not be limited to, 
the following:
    (a) Each grade level or equivalent shall have a minimum criteria for 
student promotion based primarily on measurable mastery of the 
instructional objectives.
    (b) Criterion-referenced tests that evaluate student skills shall be 
utilized for measuring the mastery of instructional objectives. The 
evaluation results shall form the basis for the promotion of each 
student.
    (c) A student who has not participated, either directly or through 
approved alternative instructional methods or programs, in a minimum of 
160 instructional days per academic term or 80 instructional days per 
semester without a written excused absence shall not be promoted. A 
school board or a school committee may review a promotion decision and, 
if warranted due to compelling and/or extenuating circumstances, rescind 
in writing such action on a case-by-case basis. Alternative 
instructional methods shall be submitted in writing for approval by the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.



Sec. 36.32  Standard XII--Graduation requirements for a high school diploma.

    Graduation requirements contained under this section shall be 
applied beginning with the graduating class of the 1987-88 school year.
    (a) Satisfactory completion of a minimum number of units shall be 
the measure for the issuance of a high school diploma.
    (b) To graduate, a student shall earn 20 units in a four year high 
school program unless the state in which the school is located exceeds 
these requirements, in which case the state's requirements shall apply; 
fifteen (15) units shall be required as follows:
    (1) Language arts--four (4) units.
    (2) Mathematics--three (3) units.
    (3) Social studies--three (3) units.
    (i) One (1) unit in United States history;
    (ii) One-half (\1/2\) unit in civics/government;
    (iii) One-half (\1/2\) unit in tribal history/government;
    (iv) One-half (\1/2\) unit in Indian studies; and
    (v) One-half (\1/2\) unit in any other social studies;
    (4) Science--two (2) units.
    (i) One (1) unit in the general science area.
    (ii) One (1) unit in laboratory science areas, i.e., chemistry, 
physics, biology, zoology, laboratory anatomy.
    (5) Physical education--one (1) unit.
    (6) Practical arts--one (1) unit. Credit in any vocational course 
may also be used to satisfy this required unit.
    (7) Fine arts--one (1) unit. Music, art, dance, drama, theatre, and 
other fine arts courses may be used to satisfy this required unit. These 
are minimum requirements; local schools may establish academic or 
vocational requirements beyond those prescribed by these standards.

[[Page 146]]

    (c) A school with an average enrollment of fewer than 75 students 
may offer subjects in alternate years. If schools use this pattern, 
alternating pairs of subjects shall be listed and approved by the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (d) Credits earned through approved correspondence or extension 
study may be accepted if such credits are from schools approved or 
accredited by the state in which they are located or by a college or 
university which is regionally accredited for such purposes.
    (e) Students who successfully complete the requirements of the High 
School Proficiency Examination in the State in which the school is 
located shall receive an endorsement so stating on their diplomas.



                     Subpart E_Instructional Support



Sec. 36.40  Standard XIII--Library/media program.

    (a) Each school shall provide a library/media program which shall, 
as a minimum, meet the applicable state and/or regional standards, but 
shall not be limited to these, and shall include the following:
    (1) A written set of instructional and service objectives shall be 
established that is intergrated and consistent with the school's 
educational goals and philosophy. The librarian or educational media 
specialist, with students and staff, shall set objectives based on 
assessed academic and residential needs. The program and services will 
be evaluated yearly by the principal and the librarian or educational 
media specialist to determine the degree to which all objectives have 
been met.
    (2) A written policy for the selection of materials and equipment 
shall be developed by a library committee in collaboration with the 
librarian and be approved by the school board. The colleciton of 
materials shall include as a minimum the following:
    (i) A collection of books suitable for the range of student 
abilities and interests being served in the following ADM ratios.
    (A) Elementary K-6, 15 books per student
    (B) Middle 7-8, 12 books per student
    (C) Secondary 9-12, 10 books per student

It is required that materials pertaining to Indian Tribes and/or Alaskan 
Natives be integrated within this basic collection.
    (ii) Eight (8) to 12 percent of the basic collection must be 
composed of reference books, currently relevant and in a state of good 
physical condition, for practical use. Single copies of the principal 
textbooks used to complement instruction shall be in the collection, but 
textbooks cannot be counted toward this standard.
    (iii) A periodical collection, suitable for the range of student 
abilities and interests being served, consisting of one (1) periodical 
for every ten (10) students, shall be maintained. Schools of over 200 
will have a base collection of 20 periodicals.
    (iv) A professional collection for the school staff shall be 
developed and maintained by the librarian in cooperation with a faculty 
committee.
    (v) A variety of audio-visual materials, suitable for the range of 
instruction being provided, of at least 750 items or five (5) items for 
each student, whichever is larger, and inclusive of materials located in 
the classrooms shall be maintained. This category includes some of each 
of the following: Tactile objects, globes, models, maps, films, film-
strips, microforms, slides, audio and video tapes, recordings, 
transparencies and graphics, and the equipment to use all of these. 
Multiple items within a specific set of materials will be counted as 
separate items.
    (3) There shall be a library media center serviced by a librarian. 
Schools with fewer than 200 students are encouraged, wherever feasible, 
to cooperate in sharing librarian resources. Schools within an Agency 
and/or Area may cooperatively share the costs and services of a 
librarian who shall facilitate sharing of the combined available 
resources among the cooperating schools in accordance with the following 
ratios:

                         School Enrollment (ADM)

Up to 100--\1/5\ time librarian
101-200--\1/5\ time librarian and \1/2\ time library aide or 20 hours of 
library activity

[[Page 147]]

201-400--1 full-time librarian or \2/5\ time librarian provided the 
school has a full-time library aide
401+--1 full-time librarian and a full-time library aide

    (4) All libraries must conduct an annual inventory of available 
books, materials, and equipment in accordance with the acquisitions and 
selection policies.



Sec. 36.41  Standard XIV--Textbooks.

    (a) Each school shall establish a textbook review committee composed 
of teachers, parents, and students, and school board members. 
Appointment to the textbook review committee shall be subject to school 
board approval.
    (b) The textbook review committee shall establish a procedure and 
criteria for the annual review of textbooks and other materials used to 
complement instruction. The criteria shall include, but not be limited 
to, the following:
    (1) The textbook content shall meet the course objectives which are 
within the adopted school curriculum.
    (2) The textbooks shall, as much as possible, reflect cultures 
accurately.
    (3) The textbooks shall be current, in good physical condition, and 
varied in reading levels.
    (c) Each school shall equitably distribute instructional materials 
to all classrooms. Each school shall inventory all property and 
equipment annually prior to requisitioning additional materials. Copies 
of the inventory shall be kept on file by the school staff.



Sec. 36.42  Standard XV--Counseling services.

    Each school shall offer student counseling services concerned with 
physical, social, emotional, intellectual, and vocational growth for 
each individual. Counseling services shall be included in a school-wide 
assessment program.
    (a) Each Agency and Area, as appropriate, shall institute and 
supervise an assessment program for its schools in order to provide for 
the objective assessment of student academic performance. Required 
formal tests shall be administered annually to all regular program 
students in grades 4, 8, and 12. (The testing of special education and 
gifted/talented students shall be in accordance with respective 
regulations.) If required by state certification standards, schools may 
use the state mandated academic achievement tests and accompanying 
requirements. These formal tests and their subtest contents, as well as 
the test-related procedures, shall include, but not be limited to, the 
following:
    (1) Each Spring, schools shall conduct testing for grades 4, 8, and 
12 using a current version of a standardized academic achievement test 
based upon the national assessment standards designed to assess higher 
order thinking skills. All schools shall keep a current record, with the 
Office of Indian Education Programs, of the test the school administers 
each Spring and the testing dates.
    (2) Schools shall use some form of performance-based or authentic 
assessment in addition to standardized achievement testing.
    (3) Each school shall report the summative results of its assessment 
program to its respective Agency or Area, as appropriate, and its school 
board.
    (4) Parents/guardians shall be informed of their children's 
assessment results and provided with an explanation and interpretation 
to ensure adequate understanding of the results.
    (5) Each school's instructional program shall establish an ongoing 
student academic assessment program to ensure that defined assessment 
procedures are in place. The program shall include regular training in 
basic assessment procedures and routines for all teachers and other 
staff involved in student assessment.
    (6) Each Agency and Area, as appropriate, shall report the results 
of each school's formal Spring tests to the Office of Indian Education 
Programs by August 1 of each year. Summative information from 
performance-based and authentic assessments shall be reported at the 
same time.
    (b) Each counseling program shall provide the following:
    (1) Each school having a minimum school ADM of 200 students shall 
make provisions for the full-time professional services of a counselor, 
and each

[[Page 148]]

school enrolling fewer than 200 students shall make provisions for a 
part-time professional counselor.
    (2) The counselors shall be familiar with the unique tribal, social, 
and economic characteristics of students.
    (3) The counseling program shall contain the following:
    (i) A written referral procedure;
    (ii) Counseling techniques and documentation procedures to provide 
for the career, academic, social, and personal needs of the students 
which are based on the cultural beliefs and values of the students being 
served;
    (iii) Preventative and crisis counseling on both individual and 
group bases;
    (iv) Confidentiality and security of counseling records for each 
student; and
    (v) Design and implementation of orientation programs to facilitate 
the pupil's transition from elementary to junior high/middle school and 
from junior high/middle school to high school.
    (vi) Each junior or middle school and high school student shall 
receive academic counseling a minimum of twice yearly during which time 
the counselor shall assist the student in developing a written academic 
and career plan based on ability, aptitude, and interests. Additionally, 
counselors will assist high school students in selecting courses which 
satisfy the school's and the state's graduation requirements and the 
student's academic and career plan. Further, seniors will be given aid 
in completing registration and/or financial assistance applications for 
either vocational or academic post-secondary institutions.
    (vii) Each high school counseling program shall be required to have 
on file for each student a planned academic program of studies which is 
available from the regular course offerings of the school to meet the 
student's career objectives and which will show that the student has 
received counseling.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



Sec. 36.43  Standard XVI--Student activities.

    All schools shall provide and maintain a well-balanced student 
activities program based on assessment of both student and program 
needs. Each activity program shall help develop leadership abilities and 
provide opportunities for student participation but not be limited to 
activities that include special interest clubs, physical activities, 
student government, and cultural affairs. The activity program shall be 
an integral part of the overall educational program.
    (a) All student activities shall be required to have qualified 
sponsors and be approved by the school supervisor, and the school board 
shall approve the overall activity plan. A qualified sponsor is a 
professional staff member of the school that is given responsibility to 
provide guidance or supervision for student activities.
    (b) A plan of student activity operations shall be submitted, by 
each activity at the beginning of each school year, to the school 
supervisor. The plan will include the purpose, structure, coordination, 
and planned types of fund-raising activities.
    (c) School may participate in interscholastic sports and activities 
on an informal or formal basis. On an informal basis, the Bureau-
operated schools will coordinate with other schools in setting up a 
schedule of sports and games. Schools that participate in state-
recognized leagues will abide by those state rules regulating inter-
school competition.
    (d) Until comparable competitive opportunities are provided to all 
students, regardless of sex, no student shall be barred from 
participation in interscholastic competition in noncontact sports except 
on the basis of individual merit.
    (e) Residential schools shall plan and provide an intramural program 
for all students. The program shall include a variety of scholastic and 
sport activities.
    (f) Students shall be involved only in activities which are 
sanctioned by the school.
    (g) All student activities involved only in fund raising are 
required to establish a school/student activity bank account following 
school/student banking procedures outlined under 25 CFR 31.7. All 
student activity accounts shall be audited annually.

[[Page 149]]

    (h) The school shall provide for the safety and welfare of students 
participating in school-sponsored activities.
    (i) Each sponsor of a student activity will be given orientation and 
training covering the responsibilities of a sponsor by the school 
supervisor.



              Subpart F_Evaluation of Educational Standards



Sec. 36.50  Standard XVII--School program evaluation and needs assessment.

    Each school shall complete a formal, formative evaluation at least 
once every seven (7) years beginning no later than the second complete 
school year following the effective date of this part. Schools shall 
follow state and/or regional accreditation, or accreditation 
requirements equal to the state in which a school is located. Each 
school shall follow the prescribed evaluation cycle. The primary purpose 
of this evaluation will be to determine the effects and quality of 
school programs and to improve the operations and services of the school 
programs.
    (a) Each school's evaluation design or model will provide objective 
and quantitative analysis of each area to be evaluated. The analysis 
shall include product and process evaluation methods. The areas to be 
reviewed will include, but not be limited to, the following:
    (1) School philosophy and objectives.
    (2) Administrative and organizational requirements.
    (3) Program planning and implementation.
    (4) Curriculum development and instruction.
    (5) Primary education.
    (6) Program of studies for elementary, junior high/middle, and high 
schools.
    (7) Grading requirements.
    (8) Promotion requirements.
    (9) High school graduation requirements.
    (10) Library/media.
    (11) Textbooks and other instructional materials.
    (12) Counseling services.
    (13) Medical and health services.
    (14) Student activities.
    (15) Transportation services.
    (16) Staff certification and performance.
    (17) Facilities (school plant).
    (18) Parent and community concerns.
    (19) School procedures and policies.
    (20) School board operations.
    (b) The Director, within six (6) months from the effective date of 
this part, shall distribute to each school, Agency or Area, as 
appropriate, a standardized needs assessment and evaluation instrument 
with guidelines for developing and applying a locally appropriate 
evaluation model for carrying out the requirements of this standard.



Sec. 36.51  Standard XVIII--Office of Indian Education Programs and Agency 
monitoring and evaluation responsibilities.

    (a) The Office of Indian Education Programs shall monitor and 
evaluate the conformance of each Agency or Area, as appropriate, and its 
schools with the requirements of this part. In addition, it shall 
annually conduct onsite monitoring at one-third of the Agencies and 
Areas, thereby monitoring onsite each Agency and/or Area at least once 
every three (3) years. Within 45 days of the onsite visit, the Director 
shall issue to each Agency Superintendent for Educaton or Area Education 
Programs Administrator, as appropriate, a written report summarizing the 
monitoring findings and ordering, as necessary, required actions to 
correct noted deficiencies.
    (b) Each Agency or Area, as appropriate, in conjunction with its 
school board shall monitor and evaluate the conformance of its school 
with the requirements of this part through an annual onsite evaluation 
involving one-third of the schools annually, thereby monitoring onsite 
each school at least once every three (3) years. Within 30 days of the 
onsite visit, the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, shall issue to the local school 
supervisor and local school board a written report summarizing the 
findings and ordering, as necessary, required actions to correct noted 
deficiencies.

[[Page 150]]

    (c) Schools, Agencies, and Areas shall keep such records and submit 
to the responsible official or designee accurate reports at such times, 
in such form, and containing such information as determined by that 
official to be necessary to ascertain conformance with the requirements 
of this part.
    (d) Schools, Agencies, and Areas shall permit access for examination 
purposes by the responsible official, or any duly authorized designee, 
to any school records and other sources of information which are related 
or pertinent to the requirements of this part.
    (e) The Office of Indian Education Programs, Agency Superintendent 
for Education, or Area Education Programs Administrator, as appropriate, 
shall annually conduct a summative evaluation to assess the degree to 
which each Bureau educational policy and administrative procedure 
assists or hinders schools in complying with the requirements of this 
part. This will include, but not be limited to, the following actions:
    (1) Evaluate current policies and practices not related to this part 
and the effects thereof on the amount of time and resources required 
which otherwise would be available for these standards;
    (2) Modify any policies and practices which interfere with or 
compromise a school's capability to achieve and maintain these 
standards;
    (3) Invite non-Federal agencies to evaluate the effects current 
policies and procedures have had on complying with the requirements of 
this part; and
    (4) Submit annually to the Director a copy of the summative 
evaluation.



                    Subpart G_Compliance and Waivers



Sec. 36.60  Compliance for minimum academic standards.

    Implementation of these standards shall begin immediately on the 
effective date of this part.
    (a) A school is in compliance when it has met and satisfied all the 
requirements of these standards.
    (b) Each school supervisor shall, within 45 days after the start of 
each school term, submit a compliance report to the local school board; 
within 15 days thereafter, the compliance report shall be submitted to 
the Agency Superintendent for Education or the Area Education Programs 
Administrator, as appropriate, which attests to whether a school is in 
compliance or noncompliance.
    (c) In those instances where a school does not meet the requirements 
of these standards, the school supervisor shall inform the parents or 
legal guardians by letter no later than 60 days after the start of each 
school term.
    (d) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the school has or 
has not met all of the requirements.
    (2) A specific listing of the requirements which have not been met.
    (3) A summary of an action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (e) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each school's 
compliance report and shall provide the Director with a summative report 
by November 15 of each year which includes:
    (1) A listing of those schools not in compliance.
    (2) A detailed statement as to why each school is not in compliance 
and how it proposes to reach compliance.
    (3) A plan of action outlining what actions the Agency 
Superintendent for Education or Area Education Programs Administrator 
will take to assist the school(s) to reach compliance.
    (f) In the event a school is not in compliance for two consecutive 
years due to conditions which can be corrected locally, appropriate 
personnel actions shall be initiated at all applicable levels of school 
administration. Noncompliance may be acceptable grounds for dismissal.
    (g) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and

[[Page 151]]

contract schools up to the level required by the applicable standards 
established under section 1121 of Pub. L. 95-561, 25 U.S.C. 2001.



Sec. 36.61  Waivers and revisions.

    (a) The tribal governing body, or the local school board if so 
designated by the tribal governing body, shall have the local authority 
to waive, in part or in whole, the standard(s) established in this part, 
where the standard(s) is deemed by such body to be inappropriate and 
shall also have the authority to revise such standard(s) to take into 
account the specific needs of the tribe's children. This includes 
Bureau-operated schools. When the tribal governing body, or local school 
board if so designated by the tribal governing body, waives the 
standard(s) or part thereof, it shall within 60 days submit revised 
standard(s) to the Assistant Secretary for approval. In the interim 
between the waiver of the standard(s) and the approval of the revised 
standard(s), the standards of this part or minimum state standards shall 
apply to the affected school(s). In the notice of the waiver, the tribal 
governing body or its designee shall state whether the standards in this 
part or the minimum state standards apply to the affected school(s) for 
such interim period. The Assistant Secretary shall respond to the 
revised standard(s) within 45 days of receipt. Revised standard(s) shall 
be established by the Assistant Secretary unless specifically rejected 
by the Assistant Secretary for good cause and in writing. The written 
notice of rejection shall be sent to the affected tribe(s) and local 
school board. Such rejection shall be final. All revised standards shall 
be submitted to the Assistant Secretary in writing and will adhere to 
the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the school's annual standards compliance report 
as required by Sec. 36.60(b).
    (2) The section or part of the standard to be waived must be 
specified, and the extent to which it is to be deviated from shall be 
described.
    (3) A justification shall be included with a revised standard, which 
explains why the alternative standard is considered necessary.
    (4) Measurable objectives of the alternative standard(s), the method 
of achieving the alternative standard(s), and the estimated cost of 
implementation must be stated.
    (b) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established under this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and the 
Indian-controlled contract school.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



                  Subpart H_National Dormitory Criteria



Sec. 36.70  Scope of subpart.

    This subpart contains the criteria and mandatory requirements for 
all dormitories. The individual employee responsibilities, based on the 
terminology used to designate specific employee positions and their 
assigned responsibilities, may vary depending upon whether the dormitory 
is a direct Bureau operation or contract operation.



Sec. 36.71  General provisions.

    (a) The Homeliving Specialist is the administrative head of the 
dormitory who shall have sufficient autonomy and authority to ensure the 
successful functioning of all phases of the dormitory program, and, in 
dormitories attached to a school, shall report to the school supervisor.
    (b) In situations where a Bureau-funded dormitory is maintained, 
operated, and administered separately from the academic program, this 
dormitory will ensure access to or provide a guidance program equal to 
the standards as those under Sec. 36.42 of this part.
    (c) Students who qualify for residential services under the 
Exceptional

[[Page 152]]

Child Program must have, in their individualized education plan, 
objectives that are to be met in the homeliving program. Documentation 
to support completion of these objectives is required.
    (d) Dormitories with intense residential guidance programs shall 
have updated written descriptions of the programs with stated purposes, 
objectives, activities, staffing, and evaluation system. Each student 
diagnosed as being in need of intense guidance services shall have a 
file which contains the following:
    (1) Documentation of eligibility according to the definition 
contained under 25 CFR 39.11(h);
    (2) Documentation of a diagnosis of the student's needs;
    (3) A placement decision signed by a minimum of three (3) staff 
members;
    (4) An individualized treatment plan which includes:
    (i) Referral date and referral sources;
    (ii) Diagnosis identifying specific needs;
    (iii) Specific goals and objectives to be met;
    (iv) Record of specific services including beginning and ending 
dates;
    (v) Designation of responsible staff person(s); and
    (vi) A means by which the student's progress and the effectiveness 
of the individualized treatment plan can be periodically reviewed and 
reevaluated.
    (e) Each dormitory program that does not have an academic program 
under subpart C shall make available career counseling information on 
educational and occupational opportunities and help students assess 
their aptitudes and interests. This shall be done on a continuing basis, 
beginning at the elementary level.
    (f) Counseling services shall be made available for students during 
non-academic hours.
    (g) Provisions shall be made to interpret to staff, students, and 
parents the administrative policies and practices of the dormitory. This 
provision shall be made in the form of a manual, handbook, brochure, or 
other written document that will be made available and explained to all 
who are interested. The topics shall include, but not be limited to, the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered; and
    (3) A copy of the student rights handbook.
    (h) Program will be designed and orientation programs implemented to 
facilitate the pupils' transition from elementary to middle school and 
from middle to high school, where appropriate.
    (i) All dormitories shall provide and maintain a well-balanced 
student activities program based on assessment of both student and 
program needs. Programs shall provide opportunities for student 
participation in, but not limited to, activities that include special 
interest clubs, physical activities, student government, and cultural 
affairs. In addition, the following provisions shall be adhered to:
    (1) Dormitories shall plan and provide for an intramural program 
that includes a variety of scholastic and sport activities.
    (2) A plan of operation shall be submitted by each activity at the 
beginning of each school year to the school supervisor and approved by 
the school board. The plan shall include the purpose, structure, and 
coordination of all activities.
    (3) All dormitories conducting fund-raising activities are required 
to established a school/student activity bank account following school/
student banking procedures outlined under 25 CFR Sec. 31.7. All 
accounts shall be audited annually.



Sec. 36.72  Elementary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience in dealing with elementary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of counselor while holding the position of school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselors:

Less than 75 students: \1/2\ time counselor

[[Page 153]]

75-150 students: 1 full-time counselor
151-225 students: 1 full-time and \1/2\ time counselor
226-300 students: 2 full-time counselors


For dormitories that exceed 300 students (ADM), additional counselor 
time shall be provided according to the above ratio. Dormitories within 
an Agency are encouraged to try a variety of approaches to guidance 
service. In this arrangement, the counselor's time may be shared between 
dormitories. As long as one half-time, professionally-trained counselor 
is provided, the dormitory program may use supportive personnel and 
teachers to meet the ratio.
    (d) Dormitory counselors' work hours shall be arranged to provide 
maximum availability of services to students when they are not in 
academic session.



Sec. 36.73  Secondary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience dealing with secondary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of a counselor while holding a position as a school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselor:

Less than 100 students: \1/2\ time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and \1/2\ time counselor


For dormitories that exceed 300 students (ADM), counselor time will be 
provided according to the above radio. As long as one half-time, 
professionally trained counselor is provided, the dormitory program may 
use supportive personnel and teachers to meet the ratio.
    (d) Counselors' work hours shall be arranged to provide maximum 
availability of service to students when they are not in academic 
session.



Sec. 36.74  Homeliving (dormitory operations).

    Staff shall be provided so that at least one adult is on duty at all 
times when students are in the dormitory. Each dormitory program shall 
include, but not be limited to, the following:
    (a) Every dormitory facility shall be under the direct supervision 
of a dormitory manager. A building composed of separate wings or several 
floors shall be counted as one facility.
    (b) Each dormitory operation shall provide the following minimum on-
duty paraprofessional staff to student ratio (ADM):

 
                                                                Ratio
 
                              Grades 1 to 6
 
Weekdays:
  Mornings.................................................         1:30
  During school hours......................................         1:40
  Evenings.................................................         1:30
  Nights...................................................         1:40
Weekends:
  Mornings.................................................         1:30
  Evenings.................................................         1:30
  Nights...................................................         1:40
 
                             Grades 7 to 12
 
Weekdays:
  Mornings.................................................         1:50
  During school hours......................................         1:80
  Evenings.................................................         1:50
  Nights...................................................         1:80
Weekends:
  Mornings.................................................         1:50
  Evenings.................................................         1:50
  Nights...................................................         1:80
 


Dormitory operations for grades one through eight are encouraged to 
provide additional staff aides during the time children in the primary 
grades are dressing and preparing for breakfast and school. Staff ratios 
on weekends shall be reduced at boarding schools to adjust for those 
students who go home, according to the above ratio.
    (c) Group instruction and discussion session shall be held on 
various topics at least on a monthly basis, but preferably on a weekly 
basis. Topics to be presented may be determined by a committee comprised 
of students, staff, administrators, and parents. These topics shall 
include discussions of problems or needs that exist at the location and/
or community.

[[Page 154]]

    (d) Each dormitory facility shall be cleaned daily when in operation 
to provide a safe and sanitary environment. Student assistance may be 
utilized; however, the responsibility for the cleanliness, safety, and 
sanitation of the facility shall rest with the dormitory administrator. 
Bed and bath linen shall be changed a minimum of once per week. 
Necessary toiletry items shall be made available to those students who 
are economically unable to provide them.
    (e) Dormitory operations shall have access to clothes washers and 
dryers. Equipment shall be utilized only for students' clothing. In 
grades one through six, residential paraprofessionals shall be 
responsible for the upkeep of clothing. Students in grades seven through 
12 shall be responsible for the upkeeping of their own clothing. In 
grades seven through 12, students shall be allowed to wash and dry their 
clothing after training is given in using the machines. Contracting for 
student clothing care may also be utilized under this part.
    (f) A system of student accountability shall be established at each 
residential facility. Minimum requirements of the system shall include 
an attendance procedure at least four (4) times per normal waking day 
for grades one through eight and two (2) times for grades nine through 
12. However, students in grades seven through 12 may be allowed to have 
a self check-in system provided that an employee reviews the roster 
within an hour of each designated check-in time. During sleeping hours, 
students in grades one through eight shall be checked on an hourly 
basis; students in grades nine through 12 shall be checked every two (2) 
hours. At the start of each school day, residential facilities 
supervisors shall report to the school office which students will not be 
in attendance. An intra-school pass system shall be developed and 
implemented.
    (g) Students shall be permitted to be released from the dormitory 
overnight, on weekends, or during vacation periods only when prior 
written approval is granted by the parent or guardian and only if the 
local school board adopts a policy governing the conditions of release. 
Such policy must adhere to the concept that the dormitory/school is 
acting in ``loco parentis.''
    (h) Dormitory facilities shall have a designated room or rooms which 
shall be utilized as an isolation room(s) for student health care needs. 
Students isolated in such room(s) shall be checked on a minimum of an 
hourly basis.
    (i) Each dormitory operation shall develop a written procedure for 
handling emergency situations. Such a procedure shall include names and 
telephone numbers of the responsible parties to contact in case of 
emergencies. Situations that shall be considered emergencies include 
life-threatening medical/health problems, power failures, walkaways, 
etc.
    (j) A tutoring program shall be developed and implemented to assist 
those students having academic difficulties. Each dormitory operation 
shall provide a time and place where tutoring, homework, reading, and/or 
studying can be done for at least one hour daily.
    (k) The responsible dormitory supervisor shall be accountable for 
reporting any hazardous or defective items in the dormitory to the 
appropriate supervisor and plant manager.
    (l) Leisure-time activities shall be provided to dormitory students. 
These activities may include recreational activities, clubs, arts/
crafts, and reading of newspapers and periodicals. Television viewing 
shall not be considered as structured leisure time unless a scheduled 
program provides educational benefit.
    (m) Lines of communication shall be established with other local 
social service agencies to assist in the resolution of problems that may 
extend beyond the confines of the dormitory. These agencies may be 
State, tribal, or Federal.
    (n) Dormitory personnel will receive training in emergency first aid 
procedures.



Sec. 36.75  Space and privacy.

    The configuration of sleeping space and other living areas will vary 
according to the grade levels of the occupants; however, sleeping rooms 
shall provide sufficient space and privacy for the resident students. 
The following space and privacy requirements shall

[[Page 155]]

be required for dormitories. A dormitory shall be considered at capacity 
when the addition of one more student would put the school out of 
compliance with the space standard; and additional students shall not be 
admitted for residential purposes.
    (a) Dormitory facilities for grades one through eight shall have 
space footage averaging from 40 to 60 square feet per student for 
sleeping rooms, exclusive of furniture (wardrobe, desks, beds, etc.).
    (b) Dormitories housing students who are in grades nine through 12 
shall provide sleeping rooms with a per student square footage averaging 
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks, 
beds, etc.).
    (c) When new dormitories are constructed or existing dormitories are 
remodeled, sleeping rooms shall be constructed not to exceed a maximum 
of four students per room for grades one through 12.
    (d) Each peripheral dormitory shall have a set of encyclopedias, one 
dictionary for every ten students (ADM), and ten other general reference 
materials such as an atlas or periodical subscription.



Sec. 36.76  Compliance for the National Criteria for Dormitory Situations.

    Implementation of the National Criteria for Dormitory Situations 
shall begin immediately on the effective date of this part. A dormitory 
is in compliance when it has met and satisfied all the requirements 
under subpart H.
    (a) The education supervisor(s) or peripheral dormitory supervisor 
shall report to their supervisor(s) within 45 days after the start of 
each school term with a compliance report to the local school board that 
attests to whether a dormitory is in compliance or noncompliance; within 
15 days, the compliance report shall be submitted to the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (b) The school supervisor or the peripheral dormitory supervisor 
shall notify in writing each parent or legal guardian of the dormitory 
noncompliance status within 60 days after the beginning of the school 
term.
    (c) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the dormitory has 
or has not met all of the requirements.
    (2) A specific listing of the requirements that have not been met.
    (3) A detailed action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (d) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each dormitory 
compliance report and shall provide the Director with a detailed report 
by November 15 each year which shall include:
    (1) A list of dormitories indicating those not in compliance.
    (2) A detailed statement as to why each school indicated is not in 
compliance and how it is proposed to reach compliance.
    (3) A plan of action outlining what actions the Agency or Area 
education line officers, as appropriate, will take to assist the 
dormitories to reach compliance.
    (e) In the event a dormitory is not in compliance for two 
consecutive years due to conditions which can be corrected locally, 
appropriate personnel actions shall be initiated at all appropriate 
levels of school/dormitory administration. Noncompliance may be grounds 
for dismissal.
    (f) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and contract boarding schools up to the criteria 
established under section 1122 of Pub. L. 95-561, and 25 U.S.C. 2002. 
Such plan shall include, but not be limited to, predictions for the 
relative need for each boarding school in relation to the criteria 
established under this section and specific cost estimates for meeting 
such criteria at each school up to the level required by such criteria.

[[Page 156]]



Sec. 36.77  Waivers and revisions.

    (a) The tribal governing body (tribe), or the local school board 
(LSB), if so designated by the tribe, shall have the local authority to 
waive or revise in part or in whole, the standard(s) established in this 
part if the standard(s) are determined to be inappropriate or if they 
fail to take into account specific needs of the tribe's children. This 
provision includes both tribal and Bureau-operated schools. When the 
tribe or LSB, if designated by the tribe, waives or revises a standard, 
it shall submit the waiver or revision to the Assistant Secretary for 
approval within 60 days. Until this approval is obtained, the standard 
of this part or minimum state standards shall apply to the affected 
school(s).
    (b) All revised standards shall be submitted to the Assistant 
Secretary in writing in accordance with the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the dormitory's annual standards compliance 
report.
    (2) The section or part to be waived shall be specified, and the 
extent to which it is to be deviated from shall be described.
    (3) A justification explaining why the alternative standard is 
determined necessary shall be included with the revised standard.
    (4) Measurable objectives and the method of achieving the 
alternative standard along with the estimated cost of implementation 
shall be stated.
    (c) The Assistant Secretary shall respond in writing within 45 days 
of receipt of the waiver or revision. The waiver shall be granted or the 
revision shall be accepted by the Assistant Secretary unless 
specifically rejected for good cause and in writing. The written 
rejection shall be sent to the affected tribe(s) and LSB. This rejection 
shall be final. The waiver is granted or revision is established 
automatically on the 46th day of receipt if no written response is 
provided by the Assistant Secretary.
    (d) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established in this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and Indian-
controlled contract school.

[59 FR 61766, Dec. 1, 1994]



PART 38_EDUCATION PERSONNEL--Table of Contents



Sec.
38.1 Scope.
38.2 Information collection.
38.3 Definitions.
38.4 Education positions.
38.5 Qualifications for educators.
38.6 Basic compensation for educators and education positions.
38.7 Appointment of educators.
38.8 Nonrenewal of contract.
38.9 Discharge of educators.
38.10 Conditions of employment of educators.
38.11 Length of the regular school term.
38.12 Leave system for education personnel.
38.13 Status quo employees in education positions.
38.14 Voluntary services.
38.15 Southwestern Indian Polytechnic Institute.

    Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act 
of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 
98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. 
L. 105-337.

    Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.



Sec. 38.1  Scope.

    (a) Primary scope. This part applies to all individuals appointed or 
converted to contract education positions as defined in Sec. 38.3 in 
the Bureau of Indian Affairs after November 1, 1979. This part applies 
to elementary and secondary school positions and agency education 
positions.
    (b) Secondary scope. Section 38.13 applies to employees with 
continuing tenure in both the competitive and excepted service who 
encumber education positions.
    (c) Other. Where 25 CFR part 38 and a negotiated labor relations 
agreement conflict, the negotiated agreement will govern.

[[Page 157]]



Sec. 38.2  Information collection.

    (a) The information collection requirements contained in Sec. 38.5 
use Standard Form 171 for collection, and have been approved by OMB 
under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. 
The sponsoring agency for the Standard Form 171, is the Office of 
Personnel Management. The information is being collected to determine 
eligibility for employment. The information will be used to rate the 
qualifications of applicants for employment. Response is mandatory for 
employment.
    (b) The information collection requirement for Sec. 38.14, 
Voluntary Services has been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-
0116. The information is being collected to determine an applicants 
eligibility and selection for appropriate volunteer assignments. 
Response is voluntary.



Sec. 38.3  Definitions.

    As used in this part, the term:
    Agency means the current organizational unit of the Bureau, which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    Agency school board as defined in section 1139(1), of Pub. L. 95-
561, means a body, the members of which are appointed by the school 
boards of the schools located within such Agency. The number of such 
members shall be determined by the Director in consultation with the 
affected tribes. In Agencies serving a single school, the school board 
of that school shall function as the Agency School Board.
    Agency Superintendent for Education (ASE) means the Bureau official 
in charge of education functions at an Agency Office and to whom the 
school supervisor(s) and other educators under the Agency's 
jurisdiction, report.
    Area Education Programs Administrator (AEPA) means the Bureau 
official in charge of an Area Education Office that provides services to 
off-reservation residential schools, peripheral dormitories or on-
reservation BIA funded schools that are not served by an Agency 
Superintendent for Education. The AEPA may also provide education 
program services to tribes not having an Agency Superintendent for 
Education at their agency. The AEPA has no line authority over agency 
education programs that are under the jurisdiction of an Agency 
Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Consult, as used in this part and provided in section 1131(d)(1) (B) 
and (C) of Pub. L. 95-561, means providing pertinent information to and 
being available for discussion with the school board, giving the school 
board the opportunity to reply and giving due consideration to the 
school board's response, subject to appeal rights provided in Sec. 38.7 
(a), (b) and (c), and Sec. 38.9(e)(3).
    Director means the Deputy to the Assistant Secretary/Director--
Indian Affairs (Indian Education Programs) in the Bureau.
    Discharge means the separation of an employee during the term of the 
contract.
    Education function means the administration and implementation of 
the Bureau's education programs and activities (including school 
operations).
    Education position, means a position in the Bureau the duties and 
responsibilities of which:
    (a) Are performed on a school term basis principally in a Bureau 
elementary and secondary school which involve:
    (1) Classroom or other instruction or the supervision or direction 
of classroom or other instruction;
    (2) Any activity (other than teaching) that requires academic 
credits in educational theory and practice equal to the academic credits 
in educational theory and practice required for a bachelor's degree in 
education from an accredited institution of higher education; or
    (3) Any activity in or related to the field of education 
notwithstanding that academic credits in educational theory and practice 
are not a formal requirement for the conduct of such activity; or

[[Page 158]]

    (4) Support services at or associated with the site of the school; 
or
    (b) Are performed at the Agency level of the Bureau and involve the 
implementation of education-related Bureau programs. The position of 
Agency Superintendent for Education is excluded.
    Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means 
an individual whose services are required, or who is employed, in an 
education position as defined in Sec. 38.3.
    Employment contract means a signed agreement executed by and between 
the Bureau and the individual employee hired or converted under this 
part, that specifies the position title, period of employment, and 
compensation attached thereto.
    Involuntary change in position means the release of an employee from 
his/her position instigated by a change in program or other occurrence 
beyond the control of the employee.
    Local school board, as used in this part and defined in section 
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the 
laws of the tribe to be served or, in the absence of such laws, the body 
elected by the parents of the Indian children attending a Bureau-
operated school. In schools serving a substantial number of students 
from different tribes, the members shall be appointed by the governing 
bodies of the tribes affected and the number of such members shall be 
determined by the Director in consultation with the affected tribes.
    Probationary period means the extension of the appointed process 
during which a person's character and ability to satisfactorily meet the 
requirements of the position are reviewed.
    School board means an Agency school board or a local school board.
    School supervisor means the Bureau official in charge of a Bureau 
school who reports to an Agency Superintendent for Education. In the 
case of an off-reservation residential school(s), and, in some cases, 
peripheral dormitories and on-reservation day schools, the school 
supervisor shall report to the Area Education Programs Administrator.
    School term is that term which begins usually in the last summer or 
fall and ends in the Spring. It may be interrupted by one or more 
vacations.



Sec. 38.4  Education positions.

    (a) The Director shall establish the kinds of positions required to 
carry out the Bureau's education function. No position will be 
established or continued for which:
    (1) Funds are not available; or
    (2) There is not a clearly demonstrable need and intent for it to 
carry out an education function.
    (b) Positions established for regular school operations will be 
restricted to school term or program duration. Particular care shall be 
taken to insure that year-long positions are not established unless they 
are clearly required and involve essential 12-month assignments.



Sec. 38.5  Qualifications for educators.

    (a) Qualifications related to positions. Job qualification 
requirements shall be at least equivalent to those established by the 
appropriate licensing and certification authorities of the State in 
which the position is located.
    (b) Qualifications related to individuals. An applicant for an 
education position must establish that he/she meets the requirements of 
the position by submitting an application and a college transcript, as 
appropriate, to the local school supervisor, Agency Superintendent for 
Education (ASE), Area Education Programs Administrator (AEPA), or 
Director and appearing for an interview if requested by the official 
involved. The applicant's education and experience will be subject to 
verification by the ASE or the AEPA. Employees who falsify experience 
and employment history may be subject to disciplinary action or 
discharge from the position to which he/she is appointed.
    (1) School boards may waive formal education and State certification 
requirements for tribal members who are hired to teach tribal culture 
and language.
    (2) Tribal members appointed under this waiver may not have their 
basic pay rate set higher than the rate paid to qualified educators in 
teaching positions at that school.

[[Page 159]]

    (c) Identification of qualified individuals. The Director shall 
require each ASE, AEPA, and other appropriate local official in the 
education program organization to maintain lists of qualified and 
interviewed applicants for each of the kinds of established positions. 
Applications on file shall be purged annually. Applicants whose 
qualifications are established and who indicate an interest in working 
in specified locations will be included on those local applicant lists. 
The Director shall maintain a national list of qualified applicants for 
each of the kinds of positions established. Applicants whose 
qualifications are established and who either do not indicate an 
interest in a specific location or indicate an interest in working in 
any location will be entered on the national list. The national list is 
a secondary source of applicants.
    (d) Special recruitment and training for Indian educators. The 
Director shall review annually the Bureau's ``Recruitment of Indian 
Educators Program'' and update as necessary. The Director will define 
individual training plans for trainees and subsequent promotional 
opportunities for advancement based upon satisfactory job performance in 
this program.



Sec. 38.6  Basic compensation for educators and education positions.

    (a) Schedule of basic compensation rates. The Director shall 
establish a schedule for each pay level specified in part 62 of the 
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at 
the same time as and be consistent with rates in effect under the 
General Schedule or Federal Wage System for individuals with comparable 
qualifications, and holding comparable positions.
    (b) Range of pay rates for positions within pay levels. The range of 
basic compensation rates for positions assigned to each pay level will 
be consistent with the General Schedule or Federal Wage System rates 
that would otherwise be applicable if the position were classified under 
chapter 51 or subchapter IV of chapter 53 of title 5 of the United 
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the 
comparable General Schedule position by more than ten percent.
    (c) Schedule of compensation rates for teachers and counselors. The 
basic compensation for teachers and counselors, including dormitory 
counselors and homeliving counselors, shall be determined in accordance 
with rates set by the Defense Department Overseas Teachers Pay and 
Personnel Practices Act. The schedule used shall be the current 
published schedule for the school year beginning on or after July 1 of 
each year.
    (d) Adjusting employee basic compensation rates. (1) Except for 
employees occupying positions of teachers and counselors, including 
dormitory counselors and homeliving counselors, adjustments in an 
employee's basic compensation made in connection with each contract 
renewal will be based on the following:
    (i) Contract renewal incentive--one pay increment for each renewal, 
not to exceed four increments, unless the educator is covered by a 
negotiated labor union agreement.
    (ii) Performance--employees whose performance is rated ``above 
satisfactory''; one pay increment; employees whose performance is rated 
``outstanding''; two pay increments.
    (2) Pay increments based on education may be awarded as outlined in 
62 BIAM.
    (e) Special additions to basic compensation. The Director is 
authorized to established the following special additions to rates of 
basic compensation:
    (1) The Director may authorize payment of a staffing differential 
not exceeding 25 per centum of the rate of basic compensation based on a 
formally-documented request by an ASE or AEPA. Such a staffing 
differential shall only be authorized in writing when the Director 
determines that:
    (i) It is warranted by the geographic isolation of the work site or 
other unusually difficult environmental working or living conditions 
and/or,
    (ii) It is necessary as a recruitment or retention incentive. This 
staffing differential is to be computed on the basic schedule rate 
before any other additions are computed.

[[Page 160]]

    (2) Special rates may be established for recruitment and retention 
applicable only to a specific position or to specific types of positions 
in specific locations based on a formally documented request by an ASE 
or AEPA and submitted to the Director for approval.
    (f) Payment of compensation to educators. This section applies to 
those individuals employed under the provisions of section 1131(m) of 
Pub. L. 95-561 or title 5 U.S.C.
    (1) Pay periods. Educators shall be paid on the basis of a biweekly 
pay period during the term of the contract. Chapter 55 of title 5 U.S.C. 
applies to the administration of pay for educators, except that section 
1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply 
with respect to the receipt of pay by educators during summer recess 
under certain circumstances.
    (2) Pay for contract educators. When an educator is appointed, 
payment under the contract is to begin as of the effective date of the 
contract. If an educator resigns or is discharged before the expiration 
of the term of the contract, pay ceases as of the date of resignation or 
discharge.
    (3) Prorating of pay. Within 30 days prior to the beginning of the 
academic school term, each educator must elect whether to have the 
annual contractual rate or basic pay prorated over the contractual 
academic school term, or to have the basic pay prorated over a 12-month 
period.
    (i) Each educator may change such election once during the academic 
school term, provided notice is given two weeks prior to the end of the 
fifth month after the beginning of the academic school term.
    (ii) An educator who elects a 12-month basis of prorated pay may 
further elect to be paid in one lump sum at the end of the academic 
school term for the then remaining amount of rate of basic pay otherwise 
due, provided notice is given four weeks prior to the end of the 
academic school term.
    (iii) No educator shall suffer a loss of pay or benefits because of 
elections made under this section.
    (4) Stipends for extracurricular activities. An employee, if 
assigned to sponsor an approved extracurricular activity, may elect 
annually at the beginning of the contract to be paid a stipend in lieu 
of overtime premium pay or compensatory time when the employee performs 
additional activities to provide services to students or otherwise 
support the school's academic and social programs.
    (i) The Director is authorized to establish a schedule of stipends 
for each Bureau Area, taking into consideration types of activities to 
be compensated and payments provided by public school districts in or 
near the Area.
    (ii) The stipend shall be a supplement to the employee's base pay 
and is not a part of salary for retirement computation purposes.
    (iii) The employee shall be paid the stipend in equal payments over 
the period of the extracurricular activity.

[53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]



Sec. 38.7  Appointment of educators.

    (a) Local school employees. Local Bureau school employees shall be 
appointed only by the school supervisor. Before the local school 
employee is employed, the school board shall be consulted. An 
individual's appointment may be finalized only upon receipt of a formal 
written determination certified by the local school board under such 
uniform procedures as it may adopt. Written determination by the school 
board should be received within a reasonable period, but not to exceed 
30 days. Failure of the school board to act within this period shall 
have the effect of approving the proposed appointment. The local school 
board shall use the same written procedure to disapprove an appointment. 
The school supervisor may appeal to the ASE, or, where appropriate, to 
the AEPA, any determination by the local school board concerning an 
individual's appointment. A written statement of appeal describing the 
action and the reasons the supervisor believes such action should be 
overturned must be filed within 10 days of receipt of the action from 
the local school board. A copy of such statement shall be submitted to 
the school board and the board shall be afforded an opportunity to 
respond, not to exceed 10 calendar days, in writing, to the appeal. 
After reviewing such

[[Page 161]]

written appeal and response, the ASE or AEPA may, for cause, overturn 
the action of the local school board. The ASE or AEPA must transmit the 
determination of the appeal (in the form of a written opinion) to the 
board and to the supervisor identifying the reasons for overturning the 
action within 10 calender days. Failure to act within the 10 calendar 
day period shall have the effect of approving the local school board's 
determination.
    (b) School supervisors. School supervisors may be appointed only by 
the ASE, except the AEPA shall appoint school supervisors for off-
reservation boarding schools and those few other schools supervised by 
the AEPA. The school board shall be consulted before the school 
supervisor is employed. The appointment may be finalized upon receipt of 
a formal written determination certified by the school board under any 
uniform procedures as it may adopt. Written determination by the school 
board shall be received within a reasonable period, but not to exceed 30 
days. Failure of the school board to act within this period shall have 
the effect of approving the proposed appointment. The school board shall 
use the same procedure to disapprove an appontment. Within 20 calendar 
days of receipt of any determination by the school board concerning an 
individual's appointment, the ASE or AEPA, as appropriate, may appeal to 
the Director by filing a written statement describing the determination 
and the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the local 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such an appeal. The Director may 
reverse the determination for cause set out in writing to the school 
board. Within 20 calendar days of the school board's response, the 
Director shall transmit the determination of the appeal (in the form of 
a written opinion) to the board and to the ASE or AEPA identifying the 
reasons for overturning the determination. Failure by the Director to 
act within the 20 calendar day period shall have the effect of approving 
the school board's determination.
    (c) Agency office education program employees. Appointments to 
Agency office education positions may be made only by the ASE. The 
Agency school board shall be consulted before the agency education 
employee is employed, and the appointment may be finalized upon receipt 
of a formal, written determination certified by the Agency school board 
under any uniform procedures as it may adopt. Written determination by 
the school board shall be received within a reasonable period, but not 
to exceed 30 days. Failure of the school board to act within this period 
shall have the effect of approving the proposed appointment. The Agency 
school board shall use the same written procedure to disapprove an 
appointment. Within 20 calendar days of receipt of any determination by 
the school board concerning an individual's appointment, the ASE may 
appeal to the Director by filing a written statement describing the 
determination and the reasons the supervisor believes the determination 
should be overturned. A copy of the statement shall be submitted to the 
Agency school board and the board shall be afforded an opportunity to 
respond, within 10 calendar days, in writing, to such appeal. After 
reviewing the written appeal and response, the Director may, for cause, 
overturn the determination of the Agency school board. Within 20 days of 
the board's response, the Director shall transmit the determination of 
the appeal (in the form of a written opinion) to the board and to the 
ASE identifying the reasons for overturning the determination. Failure 
of the Director to act within the 20 calendar day period shall have the 
effect of approving the school's board's determination.
    (d) Employment contracts. The Bureau shall issue employment 
contracts each year for individuals employed in contract education 
positions at the Agency or school levels.
    (e) Absence of local school boards. Where a local school board has 
not been established in accordance with section 1139(7) Pub. L. 95-561 
with respect to a Bureau school, or where a school board is not 
operational, and the local school board is required to be given a notice 
or required to be consulted by statute or these regulations,

[[Page 162]]

the official involved shall notify or consult with the Agency school 
board serving the tribe(s) to which the parents of the Indian children 
atending that school belong, or, in that absence, the tribal 
organization(s) of the tribe(s) involved.
    (f) Provisional contracts. Provisional certification or other 
limited certificates from the State are not considered full 
certification and only a provisional contract may be issued. There may 
be circumstances when no individual who has met the full certification 
or experience requirements is available for a professional position or 
when a status quo employee who does not meet full certification or 
experience requirements desires to convert to contract. When this 
situation exists, a provisional contract may be issued in accordance 
with the following:
    (1) The contract will be made only:
    (i) After it is determined that an individual already meeting 
certification or experience requirements is not available; or
    (ii) For conversion of a status quo employee who does not yet meet 
all established position requirements.
    (2) Consultation with the appropriate school board is required prior 
to the contract.
    (3) The contract may be of 12-month or school-term duration.
    (4) The employee will be required to make satisfactory progress 
toward meeting full qualification requirements.
    (5) If the employee fails to meet the requirements established under 
Sec. 38.7(f)(4), the contract will be terminated. Such termination 
cannot be grieved or appealed.
    (g) Conditional appointment. As provided in section 1131(d)(4), Pub. 
L. 95-561, if an individual who has applied at both the national and 
local levels is appointed from a local list of applicants, the 
appointment shall be conditional for 90 days. During that period, the 
individual's application and background shall be examined to determine 
if there is a more qualified individual for the position. Removal during 
this period is not subject to discharge, hearing or grievance 
procedures.
    (h) Short-term contracts. (1) There may be circumstances where 
immediate action is necessary and it is impossible to consult with the 
local school board. When this situation exists short-term contracts may 
be made by the school supervisor in accordance with the following:
    (i) The length of the contract will not exceed 60 days, or the next 
regularly scheduled school board meeting, whichever comes first.
    (ii) If the board meets and does not take action on the individual 
in question, the short-term contract may be extended for the duration of 
the school year.
    (iii) It shall be the responsibility of the school supervisor to 
fully inform the local school board of all such short-term contracts. 
Failure to do so may be cited as reason to discharge the school 
supervisor if so requested by the board.
    (2) The local school board may authorize the school supervisor to 
make an emergency short-term contract to classroom, dormitory and other 
positions directly related to the health and safety of students. When 
this situation exists, short-term contracts may be made in accordance 
with the following:
    (i) If local and agency lists of qualified applicants are exhausted, 
short-term contracts may be made without regard to qualifications for 
the position;
    (ii) The pay level will be based on the qualifications of the 
individual employed rather than the requirements of the position, if the 
qualifications of the individual are lower than required;
    (iii) The short-term contract may not exceed the school term and may 
not be renewed or extended;
    (iv) Every 60 days the school supervisor will determine if qualified 
individuals have been placed on the local or agency lists. If a 
qualified individual on the list accepts employment, the school 
supervisor must terminate the emergency appointment at the time the 
qualified individual is appointed.
    (i) Temporary contracts. There may be circumstances where a specific 
position is needed for a period of one year or less. Under these 
conditions a position may be advertised as a temporary position and be 
filled under a temporary contract. Such contract requires the same 
school board approval as a school

[[Page 163]]

year contract. If required for the completion of the activities 
specified in the original announcement, the position, may with school 
board approval be extended for up to one additional year. Temporary 
contracts may be terminated at any time and this action is not subject 
to approval or grievance procedures.
    (j) Waiver of Indian preference. Notwithstanding any provision of 
the Indian preference laws, such laws shall not apply in the case of any 
personnel action within the purview of this section respecting an 
application or employee not entitled to Indian preference if each tribal 
organization concerned grants, in writing, a waiver of the application 
of such laws with respect to such personnel action, where such a waiver 
is in writing deemed to be a necessity by the tribal organization, 
except that this shall in no way relieve the Bureau of its 
responsibility to issue timely and adequate announcements and 
advertisements concerning any such personnel action if it is intended to 
fill a vacancy (no matter how such vacancy is created). When a waiver is 
granted, it shall apply only to that particular position and as long as 
the employee remains in that position.
    (k) Prohibited reappointment. An educator who voluntarily terminates 
employment before the end of the school term may not be appointed to 
another Bureau education position before the beginning of the following 
school term. An educator will not be deemed to have voluntarily 
terminated employment if transferred elsewhere with the consent of the 
local school or Agency boards.
    (l) Contract renewals. The appropriate school board shall be 
notified in writing by the school supervisor and/or ASE or AEPA not less 
than 90 days before the end of the school term whether or not an 
individual's contract is recommended for renewal.
    (1) If the school board disagrees with the school supervisor's or 
ASE's or AEPA's recommendations, the board will submit a formal, written 
certification of its determinations to the school supervisor or ASE or 
AEPA within 25 days. If the board's determinations are not received 
within the 25 days, the school supervisor or ASE or AEPA shall issue the 
60 day notification of renewal or nonrenawal to the individual as 
required under Sec. 38.8.
    (2) When the school board submits its determination within the 25 
days and determines that a contract will be renewed, or nonrenewed, the 
appropriate official shall issue the required renewal notice, or 
nonrenawal, or appeal the determination of the school board to the 
appropriate official who will make a determination in accordance with 
the appeal procedure is Sec. 38.7(a) of this part. After the 
probationary period, if the determination is that the contract will not 
be renewed, the procedures specified in Sec. 38.8 shall apply.



Sec. 38.8  Nonrenewal of contract.

    Where the determination is made that an employee's contract shall 
not be renewed for the following year, the following procedure will 
apply to those employees who have completed three full continuous school 
terms of service under consecutive contract appointments and 
satisfactory performance in the same or comparable education positions.
    (a) The employee will be given a written notice of the action and 
the reasons thereof not less than 60 days before the end of the school 
term.
    (b) The employee will be given 10 calendar days to request an 
informal hearing before the appropriate official or body. Upon request, 
the employee may be given official time, not to exceed eight hours, to 
prepare a written response to the reason(s).
    (c) If so requested, an informal hearing shall be held within 30 
calendar days of receipt of the request.
    (d) The appropriate official or body will render a written 
determination within seven calendar days after the informal hearing.
    (e) The employee has a right to request an administrative review by 
the ASE or AEPA of the determination within 10 calendar days of that 
determination. The ASE or AEPA then has 20 calendar days to render a 
final decision. Where the employee is the supervisor of the school or an 
agency education employee, any appeal of the ASE or AEPA would be 
addressed to the Director for a decision. If the Director or ASE's or 
AEPA's decision overturns the appropriate official or

[[Page 164]]

bodies determination, the appropriate official or body will be notified 
of the reasons in writing. Failure by the Director or ASE or AEPA to act 
within the 20 days will sustain the determination. This completes the 
administrative appeal process.
    (f) Failure of any of the parties to meet the requirements of the 
above procedures will serve to negate the particular action sought by 
the negligent party.
    (g) Those employees with less than three full continuous school 
terms of consecutive contract appointments are serving a probationary 
period. Nonrenewal of his/her contract will be considered a continuation 
of the examining process. This action cannot be appealed or grieved.
    (h) Independent of the procedures outlined in this section, the 
school supervisor or ASE or AEPA, for applicable positions, shall be 
required to submit to the ASE or AEPA or appropriate higher authority 
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the 
nonrenewal actions and may overturn the determination of nonrenewal. In 
the event that the ASE or AEPA makes a decision to overturn the school 
board determination, the ASE or AEPA shall notify the school board in 
writing of his/her reasons for doing so.
    (i) No more than the substantial standard of evidence shall be 
required to sustain the nonrenewal.
    (j) A procedural error shall not be grounds for overturning a 
determination of nonrenewal unless the employee shows harmful error in 
the application of the Agency's procedures in arriving at such a 
decision. For purposes of this section, ``harmful error'' means error by 
the Agency in the application of its procedures which, in the absence or 
cure of the error, might have caused the Agency to reach a conclusion 
different than the one reached. The burden is upon the appellant to show 
that based upon the record as a whole, the error was harmful. i.e., 
caused substantial harm or prejudice to his/her rights.
    (k) Nonrenewal of a contract is not discharge and will not follow 
the discharge procedures.



Sec. 38.9  Discharge of educators.

    (a) Discharge for cause. Educators covered under the provision of 
this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In 
order to provide due process for educators, the Director shall publish 
in 62 BIAM representative conditions that could result in the discharge 
of educators for cause and procedures to be followed in discharge cases.
    (b) Discharge for inadequate performance. Action to remove educators 
for inadequate performance will be taken for failure to meet performance 
standards established under 5 U.S.C. 4302. Performance standards for all 
educators will include, among others, lack of student achievement. 
Willful failure to exercise properly assigned supervisory 
responsibilities by supervisors shall also be cause for discharge.
    (c) Other discharge. The Director shall publish in 62 BIAM a 
description of the budgetary and programmatic conditions that may result 
in the discharge of educators for other than cause during the school 
term. The individual's personnel record will clearly reflect that the 
action taken is based upon budgetary or programmatic restraints and is 
not a reflection on the employee's performance.
    (d) Procedures for discharge for cause. The Director shall publish 
in 62 BIAM the procedural steps to be followed by school supervisors, 
ASE's, and AEPA's in discharge for cause cases. These procedures shall 
provide (among other things) for the following:
    (1) The educator to be discharged shall receive a written notice of 
the proposal, specifying the causes or complaints upon which the 
proposal is based, not less than 30 calendar days before the discharge. 
However, this shall not prohibit the exclusion of the individual from 
the education facility in cases where exclusion is required for the 
safety of the students or the orderly operation of the facility.
    (2) A reasonable time, but not less than 10 calendar days, will be 
allotted for the individual to make written and/or oral responses to the 
charge.
    (3) An opportunity will be afforded the individual to review the 
material relied upon to support the charge.

[[Page 165]]

    (4) Official time, not to exceed eight hours, will be provided to 
the individual to prepare a response to the charge.
    (5) The educator may elect to have a representative and shall 
furnish the identity of any representative to the ASE or AEPA. The ASE 
or AEPA may disallow, as an employee representative, any individual 
whose activities as a representative would cause a conflict of interest 
or position, or an employee whose release from his or her official 
position would give rise to unreasonable costs to the Government, or 
when priority work assignment precludes his or her release from official 
duties. The terms of any applicable collective bargaining agreement and 
5 U.S.C. 7114(a)(5) shall govern representation of employees in an 
exclusive bargaining unit.
    (6) The individual has a right to a final decision made by the 
appropriate level of supervision.
    (7) The individual has a right to appeal the final decision and have 
the merits of the case reviewed by a Departmental official not 
previously involved in the case. This right includes entitlement to a 
hearing upon request under procedures in accordance with the 
requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-
561.
    (e) School board action. (1) The appropriate school board shall be 
notified as soon as possible, but in no case later than 10 calendar days 
from the date of issue of the notice of intent to discharge.
    (2) The appropriate school board, under any uniform procedure as it 
may adopt, may issue a formal written certification to the school 
supervisor, ASE, or AEPA either approving or disapproving the discharge 
before the expiration of the notice period and before actual discharge. 
Failure to respond before the expiration of the notice period will have 
the effect of approving the discharge.
    (3) The school supervisor initiating a discharge action may appeal 
the board's determination to the ASE or AEPA within 10 calendar days of 
receipt of the board's notice. The ASE or AEPA initiating a discharge 
may appeal the board's determination to the Director within 10 calendar 
days of receipt of the board's notice. Within 20 calendar days following 
the receipt of an appeal, the reviewing official may, for good cause, 
reverse the school board's determination by a notice in writing to the 
board. Failure to act within 20 calendar days shall have the effect of 
approving the board's determination.
    (f) School board recommendations for discharge. School boards may 
recommend in writing to school supervisors, ASE's, or AEPA's, and the 
Director that individuals in the education program be discharged. These 
written recommendations may follow any procedures formally established 
internally by the school board or tribal government. However, the 
written recommendations must contain specific causes or complaints that 
may be verified or established by investigation of factual situations. 
The official receiving a board recommendation for discharge of an 
individual shall acknowledge the recommendation in writing within 10 
calendar days of receipt and proceed with a fact finding investigation. 
The official who finally disposes of the recommendation shall notify the 
school board of the disposition in writing within 60 calendar days of 
initiation of the fact finding investigation.



Sec. 38.10  Conditions of employment of educators.

    (a) Supervision not delegated to school boards. School boards may 
not direct, control, or interrupt the day-to-day activities of BIA 
employees carrying out Bureau-operated education programs.
    (b) Employee handbook. Employee handbook and recruiting guides shall 
be developed by each local school or agency to provide specific 
information regarding:
    (1) The working and hiring conditions for various tribal 
jurisdictions and Bureau locations;
    (2) The need for all education personnel to adapt to local 
situations; and
    (3) The requirement of all education personnel to comply with and 
support duly adopted school board policies, including those relating to 
tribal culture or language.
    (c) Contract renewal notification. Employees will be notified 60 
calendar

[[Page 166]]

days before the end of the school term of the intent to renew or not 
renew their contract. If an individual's contract is to be renewed, the 
individual must agree in writing to serve for the next school term. This 
agreement must be received within 14 calendar days of the date of the 
notice in order to complete the contract renewal. If this agreement is 
not received by the fourteenth day, the employee has voluntarily 
forfeited his or her right to continuing employment. If an individual 
agrees to serve for the next school term and fails to report for duty at 
the beginning of the next school term, the contract will be terminated 
and the individual's future appointment will be subject to the 
restriction in Sec. 38.7(k) of this part.
    (d) Dual compensation. An employee accepting a renewal of a school 
term contract may be appointed to another Federal position during the 
school recess period without regard to the dual compensation regulations 
in 5 U.S.C. 5533.
    (e) Discrimination complaints. Equal Employment Opportunity (EEO) 
procedures established under 29 CFR part 1613 are applicable to contract 
employees under this part. It is the policy of the BIA that all 
employees and applicants for employment shall be treated equally when 
considered for employment or benefits of employment, regardless of race, 
color, sex, religion, national origin, age, or mental or physical health 
(handicap), within the parameters of Indian preference.
    (f) Grievance procedures. The Director shall publish in 62 BIAM 
procedures for the rapid and equitable resolution of grievances. In 
locations and for positions covered by an exclusive bargaining 
agreement, the negotiated grievance procedure is the exclusive avenue of 
redress for all matters within the scope of the negotiated grievance 
procedure.
    (g) Performance evaluation. The minimum number of times a supervisor 
shall meet with an employee to discuss performance and suggest 
improvements shall be once every three months for the educator's first 
year at a school or Agency, and twice annually thereafter during the 
school term.



Sec. 38.11  Length of the regular school term.

    The length of the regular school term shall be at least 180 student 
instructional days, unless a waiver has been granted under the 
provisions of 25 CFR 36.61.



Sec. 38.12  Leave system for education personnel.

    (a) Full-time school-term employees. Employees on a full-time 
school-term contract are authorized the following types of leave:
    (1) Personal leave. A school-term employee will receive 28 hours of 
personal leave to be used for personal reasons and 12 hours of emergency 
leave. This leave only accrues provided the length of the contract 
exceeds 24 weeks.
    (i) The school-term employee will request the use of this leave in 
advance when it is for personal use or personal business (e.g., going to 
the bank, etc.). When this leave is requested for emergency purposes 
(e.g., death in immediate family), it will be requested immediately 
after the emergency is known, if possible, by the employee and before 
leave is taken or as soon as the supervisor reports to work on the 
official work day.
    (ii) Final approval rests with the supervisor. This leave shall be 
taken only during the school term. No compensation for or carryover of 
unused leave is authorized.
    (2) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of four hours each biweekly 
pay period in pay status during the term of the contract; and no 
precredit or advance of sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (3) School vacation. School term employees may receive up to 136 
hours of

[[Page 167]]

school vacation time for use when school is not in session. School 
vacations are scheduled on the annual school calendar during the 
instructional year and may not be scheduled before the first day of 
student instruction or after the last day of student instruction. School 
vacations are not a right of the employee and cannot be paid for or 
carried over if the employee is required to work during the school 
vacation time or if the program will not permit school term employees to 
take such vacation time.
    (b) Leave for full-time, year-long employees. Employees who are on a 
full-time, year-long contract are authorized the following types of 
leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--120 hours; years 3-5 of employment--160 hours; 6 or more 
years--200 hours. The supervisor will determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment, provided 
the length of the contract exceeds 24 weeks. An employee may carry into 
succeeding years up to 200 hours of vacation leave. Leave unused at the 
time of separation is forfeited.
    (2) Sick leave. Sick leave accumulation and use is authorized on the 
same basis as for school term employees under Sec. 38.12(a)(2) of this 
part.
    (c) Leave for part-time year-long employees. Employees who are on 
part-time year-long contracts exceeding 20 hours per week are authorized 
the following types of leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--64 hours; years 3-5 of employment--80 hours; 6 or more 
years--104 hours. The supervisor shall determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment provided the 
length of the contract exceeds 24 weeks and may not be accumulated in 
excess of 104 hours from year to year. An employee may carry over up to 
104 hours from one contract year to the next. Leave unused at the time 
of separation is forfeited.
    (2) Sick leave. Sick leave is accumulated on the basis of three 
hours each biweekly pay period in pay status; no precredit or advance of 
sick leave is authorized. Accumulated sick leave at the time of 
separation will be recredited to an educator who is reemployed within 
three years of separation.
    (d) Leave for school term employees on a part-time work schedule in 
excess of 20 hours per week. (1) Employees on a part-time work schedule 
in excess of 20 hours per week may receive a maximum of 102 hours of 
school vacation time; 20 hours of personal/emergency leave; and 63 hours 
of sick leave accrued at three hours per pay period for the first 21 pay 
periods of their contracts. Personal/emergency leave only accrues 
provided the length of the contract exceeds 24 weeks.
    (2) The part-time employee will request the use of this leave in 
writing in advance when it is for personal use or personal business 
(e.g., going to the bank, etc.). When this leave is requested for 
emergency purposes (e.g., death in immediate family), it will be 
requested immediately after the emergency is known, if possible, by the 
employee and before leave is taken or as soon as the supervisor reports 
to work on the official work day.
    (3) Final approval rests with the supervisor. This leave shall be 
taken only during the school year. No compensation for or carryover of 
unused leave is authorized.
    (4) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments

[[Page 168]]

may be included under this part. However, whenever possible, medical and 
dental appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of three hours each biweekly 
pay period in pay status for the first 21 pay periods of their contract; 
no precredit or advance for sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (5) School vacation time. Part-time employees may receive up to 102 
hours of school vacation time for use when school is not in session. 
Approval for the use of this time will be administratively determined by 
the school supervisor, ASE or AEPA, and this time may not be scheduled 
before the start of school or after the end of school.
    (i) All school vacation time for part-time employees will be 
approved at the convenience of the program and not as a right of the 
employee.
    (ii) Vacation time cannot be paid for or carried over for a part-
time employee if the employee is required to work during the school 
vacation time or if the program will not permit part-time employees to 
take such vacation time.
    (e) Accountable absences for all contract employees. The following 
are considered accountable absences:
    (1) Approved absence. If prescheduled and approved by the school 
supervisor, ASE or AEPA, as appropriate, an employee may be on leave 
without pay.
    (2) Absence without leave. Any absence is not prescheduled or 
approved in advance or excused by the supervisor is considered absence 
without leave.
    (3) Court and military leave. Employees are entitled to paid absence 
for jury or witness service and military duty as a member of the 
National Guard or Reserve under the same terms or conditions as outlined 
in sections 6322 and 6323 of title 5 U.S.C., and corresponding 
provisions of the Federal Personnel Manual, when the absence occurs 
during the regular contract period. Employees may be requested to 
schedule their military leave at times other than when school is in 
session.
    (4) Administrative leave. Administrative leave is an excused absence 
from duty administratively authorized without loss of pay or without 
charge to leave. This leave is not a substitute for other paid or unpaid 
leave categories. Administrative leave usually is authorized on an 
individual basis except when a school is closed or a group of employees 
are excused from work for a particular purpose. The school supervisor, 
ASE or AEPA will grant administrative leave. A school closing must be 
approved by the ASE or AEPA.
    (f) Educators serving with contracts with work weeks of 20 hours a 
week or less are not eligible for any type of paid leave.
    (g) For school term educators, no paid leave is earned nor may 
accumulated leave be used during any period of employment with the 
Bureau between school terms.
    (h) Employees issued contracts for intermittent work are not 
eligible for any type of paid leave.
    (i) Leave transferred in. Annual leave credited to an employee's 
accrued leave balance immediately before conversion to a contract 
education position or appointment under this part will be carried over 
and made available to the employee. Sick leave credited to an employee's 
accrued sick leave balance immediately before conversion to a contract 
education position or appointment under this part shall be credited to 
the employee's sick leave account under the system in Sec. 38.12(a)(2) 
and (b)(2).



Sec. 38.13  Status quo employees in education positions.

    (a) Status quo employees. Individuals who were Bureau employees on 
October 31, 1979, with an appointment in either the competitive or 
excepted service without time limitation, and who are serving in an 
education position, shall be continued in their positions under the 
terms and conditions of that appointment with no change in their status 
or positions. Such employees are entitled to receive any changes in 
compensation attached to the position. Although such employees occupy 
``education positions'' as defined in this part, the terms and 
conditions of their appointment, status, and entitlements are determined 
by competitive service

[[Page 169]]

regulations and procedures. Under applicable procedures, these employees 
are eligible for consideration for movement to other positions that are 
defined as ``contract education'' positions. Such movement shall change 
the terms and conditions of their appointment to the terms and 
conditions of employment established under this part.
    (b) If the tribe or school board waives the Indian preference law, 
the employee loses the early-out retirement eligibility under Pub. L. 
96-135, ``early-out for non-Indians,'' if they are entitled to the 
early-out retirement. A memorandum for the record on BIA letterhead 
shall be signed by the employee and placed on the permanent side of his/
her Official Personnel Folder, along with the tribal resolution, if the 
tribe/school board has waived the Indian preference law to employ the 
non-Indian.''
    (c) Conversion of status quo employees to contract positions. Status 
quo employees may request in writing to the school supervisor, ASE or 
AEPA, as applicable, that their position be converted to contract. The 
appropriate school board will be consulted and a determination made by 
such school board whether such individual should be converted to a 
contract employee.
    (1) Written determination by the school board should be received 
within a reasonable period, but not to exceed 30 days from receipt of 
the request. Failure of the school board to act within this period shall 
have the effect of disapproving the proposed conversion.
    (2) With school board approval, an involuntary change in position 
shall not affect the current status of status quo education employees.



Sec. 38.14  Voluntary services.

    (a) Scope. An ASE or AEPA may, subject to the approval of the local 
school board concerned, accept voluntary services on behalf of Bureau 
schools from the private sector, including individuals, groups, or 
students. Voluntary service shall be for all non-hazardous activities 
where public services, special projects, or school operations are 
improved and enhanced. Volunteer service is limited to personal services 
received without compensation (salary or wages) by the Bureau from 
individuals, groups, and students. Nothing in this section shall be 
construed to require Federal employees to work without compensation or 
to allow the use of volunteer services to displace or replace Federal 
employees.
    (b) Volunteer service agreement. An agreement is a written document, 
jointly completed by the volunteer, the Bureau school supervisor, and 
the school board, that outlines the responsibilities of each. In the 
case of students receiving credit for their work (i.e., student 
teaching) from an education institution, the agreement will be jointly 
completed by the student, a representative of the institution, and the 
Bureau school supervisor. In the case of volunteer groups, the agreement 
shall be signed by an official of the volunteering organization, the 
Bureau school supervisor, and the school board and a list of signatures 
and emergency telephone numbers of all participants shall be attached.
    (c) Eligibility. Although no minimum age requirement exists for 
volunteers, schools shall comply with appropriate Federal and State laws 
and standards on using the services of minors. All volunteers under the 
age of 18 must obtain written permission from their parents or guardians 
to perform volunteer activities.
    (d) Status. Volunteers participating under this part are not 
considered Federal employees for any purpose other than:
    (1) Title 5 U.S.C. chapter 81, dealing with compensation for 
injuries sustained during the performance of work assignments.
    (2) Federal tort claims provisions published in 28 U.S.C. chapter 
171.
    (3) Department of the Interior Regulations Governing 
Responsibilities and Conduct.
    (e) Travel and other expenses. The decision to reimburse travel and 
other incidental expenses, as well as the amount of reimbursement, shall 
be made by the school supervisor, ASE, AEPA, and the respective school 
board. Payment is made in the same manner as for regular employees. 
Payment of travel and per diem expenses to a volunteer on a particular 
assignment must be supported by a specific travel

[[Page 170]]

authorization and cannot exceed the cost of employing a temporary 
employee of comparable qualification at the school for which a travel 
authorization is considered.
    (f) Annual report. School supervisors shall submit reports on 
volunteers to the ASE or AEPA by October 31 of each year for the 
preceding year.



Sec. 38.15  Southwestern Indian Polytechnic Institute.

    (a) The Southwestern Indian Polytechnic Institute has an independent 
personnel system established under Public Law 105-337, the 
Administrative Systems Act of 1998, 112 Stat. 3171. The details of this 
system are in the Indian Affairs Manual (IAM) at Part 20. This manual 
system may be found in Bureau of Indian Affairs Regional and Agency 
Offices, Education Line Offices, and the Central Office in Washington, 
DC.
    (b) The personnel system is in the excepted service and addresses 
the areas of classification, staffing, pay, performance, discipline, and 
separation. Other areas of personnel such as leave, retirement, life 
insurance, health benefits, thrift savings, etc., remain under the 
jurisdiction of the Office of Personnel Management.

[65 FR 58183, Sept. 27, 2000]



PART 39_THE INDIAN SCHOOL EQUALIZATION PROGRAM--Table of Contents




                            Subpart A_General

Sec.
39.1 Purpose and scope.
39.2 Definitions.
39.3 General provisions.

            Subpart B_The Indian School Equalization Formula

39.10 Establishment of the formula.
39.11 Definitions.
39.12 Instructional funding.
39.13 Residential funding.
39.14 Entitlement for small schools.
39.15 Alaskan school cost supplements.
39.16 Computation of school entitlements.
39.17 Comparability with public schools.
39.18 Recomputations of current year entitlements.
39.19 Phase-in provisions.
39.20 Development of uniform, objective and auditable student weighted 
          area placement criteria and guidelines.
39.21 Future considerations for weighted programs.
39.22 Authorization of new program development, and termination of 
          programs.
39.23 Review of contract schools supplemental funds.

           Subpart C_Formula Funding Administrative Procedures

39.30 Definitions.
39.31 Conditions of eligibility for funding.
39.32 Annual computation of average daily membership.
39.33 Special education unduplicated count provision.
39.34 Substitution of a count week.
39.35 Computation of average daily membership (ADM) for tentative 
          allotments.
39.36 Declining enrollment provision.
39.37 Auditing of student counts.
39.38 Failure to provide timely and accurate student counts.
39.39 Delays in submission of ADM counts.

           Subpart D_Direct Allotment of Formula Entitlements

39.50 Definitions.
39.51 Notice of allotments.
39.52 Initial allotments.
39.53 Obligation of funds.
39.54 Apportionment of entitlements to schools.
39.55 Responsible local fiscal agent.
39.56 Financial records.
39.57 Access to and retention of local educational financial records.
39.58 Expenditure limitations for Bureau operated schools.

               Subpart E_Local Educational Financial Plan

39.60 Definitions.
39.61 Development of local educational financial plans.
39.62 Minimum requirements.
39.63 Procedures for development of the plan.
39.64 Procedures for financial plan appeals.

                       Subpart F_Contingency Funds

39.70 Definitions.
39.71 Establishment of the School Disaster Contingency Fund.
39.72 Continuing and cumulative provisions.
39.73 Purposes.
39.74 Application procedures.
39.75 Disbursement procedures.
39.76 Prohibitions of expenditures.
39.77 Transfer of funds from Facilities Engineering for other 
          contingencies.
39.78 Establishment of a formula implementation set-aside fund.
39.79 Prohibition.

[[Page 171]]

                     Subpart G_School Board Training

39.90 Establishment of a school board training fund.
39.91 Other technical assistance and training.
39.92 Training activities.
39.93 Allowable expenditures.
39.94 Limitations on expenditures.
39.95 Reporting of expenditures.
39.96 Provision for annual adjustment.
39.97 Training for agency school board.

                    Subpart H_Student Transportation

39.100 Definitions.
39.101 Purpose and scope.
39.102 Allocation of transportation funds.
39.103 Annual transportation formula adjustment.

           Subpart I_Interim Maintenance and Minor Repair Fund

39.110 Establishment and funding of an Interim Maintenance and Minor 
          Repair Fund.
39.111 Conditions for distribution.
39.112 Allocation.
39.113 Use of funds.
39.114 Limitations.

                  Subpart J_Administrative Cost Formula

39.120 Purpose and scope.
39.121 Definitions.
39.122 Allotment of education administrative funds.
39.123 Allotment exception for FY 1991.

                   Subpart K_Pre-kindergarten Programs

39.130 Interim fiscal year 1980 and fiscal year 1981 funding for pre-
          kindergarten programs previously funded by the Bureau.
39.131 Addition of pre-kindergarten as a weight factor to the Indian 
          School Equalization Formula in fiscal year 1982.

        Subpart L_Contract School Operation and Maintenance Fund

39.140 Definitions.
39.141 Establishment of an interim fiscal year 1980 operation and 
          maintenance fund for contract schools.
39.142 Distribution of funds.
39.143 Future consideration of contract school operation and maintenance 
          funding.

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008.

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



                            Subpart A_General



Sec. 39.1  Purpose and scope.

    The purpose of this rule is to provide for the uniform direct 
funding of BIA operated and tribally operated day schools, boarding 
schools, and dormitories. These rules apply to all schools and 
dormitories and administrative units which are funded through the Indian 
School Equalization Program of the Bureau of Indian Affairs.



Sec. 39.2  Definitions.

    Assistance under this rule is subject to the following definitions 
and requirements relating to fiscal and administrative matters. 
Definitions of terms that are used throughout the part are included in 
this subpart. As used in this part, the term:
    (a) 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.
    (b) 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.
    (c) Agency Superintendent of Education or Superintendent means the 
Bureau official in charge of Bureau education programs and functions in 
an Agency who reports to the Director.
    (d) Area Director for Education means the Bureau official in charge 
of Bureau Education programs and functions in a Bureau Area Office and 
who reports to the Director.
    (e) Assistant Secretary means the Assistant Secretary of Indian 
Affairs, Department of the Interior, or his or her designee.
    (f) Average daily membership or ADM means the average of the actual 
membership in the school, for each student classification given separate 
weightings in the formula. Only those

[[Page 172]]

eligible students shall be counted as members who are:
    (1) Listed on the current roll of the school counting them during 
the count week;
    (2) Not listed as enrolled in any other school during the same 
period; and
    (3) In actual attendance at the school counting them at least one 
full day during the count week in which they are counted.
    (g) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (h) Decision of record means a formal written confirmation of a 
voted action by a school board during a formally constituted school 
board meeting.
    (i) Director means the Director of the Office of Indian Education 
Programs for the Bureau of Indian Affairs, or his or her designee.
    (j) Eligible student means an Indian student properly enrolled in a 
Bureau school or dormitory, or a tribally operated school or dormitory 
funded by the Bureau, who meets the applicable entry criteria for the 
program(s) in which he or she is enrolled.
    (k) Entitlement means that amount of funds generated by the Indian 
School Equalization Formula for the operational support of each school.
    (l) Advice of allotment means the formula written document advising 
a school or an administrative office of its entitlement under the 
formula. The advice of allotment conveys legal authority to obligate and 
expend funds in a given fiscal year.
    (m) Allotment means the amount of the obligational authority 
conveyed to a given school or Bureau administrative office by its advice 
of allotment in a given fiscal year.
    (n) Indian means a person who is a member of an Indian tribe.
    (o) Indian Tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony 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 (85 Stat. 688) which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (p) Program means each or any subset of the Indian School 
Equalization Program (ISEP), but not the ISEP itself, for which a 
separately computable dollar amount may be generated by a school. Each 
program classification is a cost account in an accounting system. The 
following accounting programs are those established by this part:
    (1) Instructional costs;
    (2) Boarding costs;
    (3) Dormitory costs;
    (4) Bilingual instruction costs;
    (5) Exceptional child education costs;
    (6) Intense residential guidance costs;
    (7) Student transportation fund costs;
    (8) School maintenance and repair fund costs;
    (9) School board training fund costs;
    (10) Pre-kindergarten costs; and
    (11) Previously private contract school operation and maintenance 
costs.
    (q) School means an educational or residential center operated by or 
under contract with the Bureau of Indian Affairs offering services to 
Indian students under the authority of a local school board and the 
direction of a local school supervisor. A school may be located on more 
than one physical site. The term school, unless otherwise specified, is 
meant to encompass day schools, boarding schools, previously private 
schools, cooperative schools, contract schools and dormitories as those 
terms are commonly used.
    (r) Local School Board, (usually referred to as school board) 
including off-reservation boarding school boards and dormitory school 
boards, when used with respect to a Bureau school, means a body chosen 
to exercise the functions of a school board with respect to a particular 
Bureau operated or funded school, in accordance with the laws of the 
tribe to be served or, in the absence of such laws, elected for similar 
purpose by the parents of the Indian children attending the school, 
except that in schools serving a substantial number of students from 
different tribes, the members shall be appointed by the governing bodies 
of the tribes affected; and the number of such members shall be 
determined by the Director in consultation with the affected tribes.

[[Page 173]]

    (s) Supervisor or local school supervisor means the individual in 
the position of ultimate authority at any Bureau administered or 
tribally operated contract school.
    (t) Tribally operated contract school or contract school means a 
school (other than a public school) which is financially assisted under 
a contract with the Bureau.
    (u) Weighted student unit (WSU) means the measure of student 
membership adjusted by the weights or ratios used as factors in the 
Indian School Equalization Formula established in Sec. 39.10 below. The 
term weighted student unit also describes the measure by which 
supplements to the weighted student count at any school are augmented as 
the result of the application of small school supplements or Alaskan 
school supplements.



Sec. 39.3  General provisions.

    (a) All funds appropriated by the Congress for the support and 
administration of Bureau operated or contracted elementary and secondary 
educational purposes and programs shall be allocated in accordance with, 
and be distributed through, the Indian School Equalization Program, 
unless a specific amount of funds are added or reduced for a particular 
class of schools through the budget and appropriations process.
    (b) Each expenditure of funds authorized in part 39 is without 
exception subject to the availability of funds.



            Subpart B_The Indian School Equalization Formula



Sec. 39.10  Establishment of the formula.

    There is hereby established the Indian School Equalization Formula 
(ISEF). Funds for the instruction and residential care of Indian 
children shall be earned as an entitlement by each local school 
according to a weighted student unit formula. The funds allocated 
through the formula shall be computed as follows:
    (a) The basic instructional average daily membership (ADM) shall be 
counted at each school location as provided for in subpart C of this 
part. From the application of ratios or weights as provided in these 
rules a weighted student unit (WSU) value for each school location is 
derived by multiplying the student count for each program area by the 
weights.
    (b) If the school is a boarding school or a dormitory, the 
residential students will produce program units which will, by the 
application of weights, produce additional WSU's.
    (c) The ADM count of eligible small schools or dormitories may 
generate additional unit supplements.
    (d) All Alaskan schools are eligible under the formula to generate 
supplemental units.
    (e) The total weighted student unit count for each school location 
is then multiplied by a base unit value to derive the estimated dollar 
entitlement to each school(s).

The total amount is made available to each school(s), under the rules 
related to administrative provisions provided in subparts C and D of 
this part.



Sec. 39.11  Definitions.

    Assistance to approved school(s) under this subpart is subject to 
the definitions established in Sec. 39.2 and to the following 
definitions for determining student counts in the various weighted 
areas. As used in the subpart, the term:
    (a) Base or base unit means both the weight or ratio of 1.0 and the 
dollar value annually established for that weight or ratio which 
represents students in grades 4 through 8 in a typical instructional 
program.
    (b) Basic program means the instructional program provided all 
students at any age level exclusive of any supplemental programs which 
are not provided to all students in day or boarding schools.
    (c) Grade or Grade Level, followed in most cases by K or a number, 
means a classroom grouping ordinarily determined by student age and 
successful completion of a criterion number of years of previous 
schoolwork. The use of this term does not preclude ISEP funding of 
programs in which instruction is non-graded or individualized, or which 
otherwise depart from grade-level school structure. For purposes of 
funding under the ISEP, students in such programs shall be counted as in

[[Page 174]]

the grade level to which they would ordinarily be assigned based on 
their chronological age and number of years of schooling completed.
    (d) Grades 1-3 means a weighted program for a student who is present 
during the count week (see Sec. 39.30(b)) in grades 1 through 3 who is 
at least 6 years old by December 31 of the fall of the school year 
during which the count occurs and is a member of an educational program 
approved by the board which is conducted at least six gross hours daily 
during at least 180 days per school year. Gross hours means from the 
start of the school day to the end of the school day including all 
activities.
    (e) Grades 4-8 and grades 9-12 means a weighted program for a 
student who is present during the count week (see Sec. 39.30(b)) in 
either of the programs encompassing grades 4 through 12 who is a member 
of an educational program approved by the school(s) at least six gross 
hours daily during at least 180 days per school year and shall not have 
achieved the age of 21 nor have received a high school diploma or its 
equivalent.
    (f) Kindergarten means a weighted program for a student who is 
present during the count week (see Sec. 39.30(b)) who is at least 5 
years old by December 31 of the fall of the school year during which the 
count occurs and a member of an educational program approved by the 
school(s) conducted at least four gross hours daily during at least 180 
days per school year. Otherwise eligible students who are in a program 
conducted less than four hours daily, but at least two gross hours daily 
are eligible as half-time kindergarten students.
    (g) Intense Bilingual means a weighted program for a student who is 
present during the count week, whose primary language is not English, 
and who is receiving academic instruction daily through oral and/or 
written forms of an Indian or Alaskan Native language, as well as 
specialized instruction in English for non native speakers of English, 
under resources of the ISEP.
    (h) Intensive residential guidance means the weighted program for a 
resident student that needs special residential services due to one or 
more of the problems identified below, and that appropriate 
documentation is in that student's file as follows:
    (1) Presenting problem:
    (i) Court of juvenile authority request for placement resulting from 
a pattern of infractions of the law.
    (ii) Explusion from previous school under due process.
    (iii) Referral by a licensed psychologist, psychiatrist or certified 
psychiatric social worker as an emotionally disturbed student.
    (iv) History of truancy more than 50 days in the last school year or 
a pattern of extreme disruptive behavior.
    (2) Documentation required:
    (i) Written request signed by officer of court or juvenile 
authority;
    (ii) Certification by expelling school;
    (iii) Psychologist, certified psychiatric social worker, or 
psychiatrist report; or
    (iv) Attendance and behavior data from records of prior school, 
court records, or from social agency records and a written documentation 
summarizing such data. For all students placed in intensive residential 
guidance programs, there shall be further documentation of a diagnostic 
workup, a placement decision by a minimum of three staff members, and a 
record of an individualized treatment plan for each student that 
specifies service objectives.
    (i) Exceptional Child Program means weighted programs for students 
who are receiving special education and related services, consistent 
with the identification, evaluation and provisions of a free appropriate 
public education required by part B of the Education of the Handicapped 
Act (20 U.S.C. 1401 et seq.; 45 CFR part 121a \1\) and section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794; 45 CFR part 84) and who 
have the following diagnosed impairments:
---------------------------------------------------------------------------

    \1\ 45 CFR 121a was redesignated as 34 CFR 300 at 45 FR 77368, Nov. 
21, 1980.
---------------------------------------------------------------------------

    (1) Deaf means a hearing impairment which is so severe that the 
child is impaired in processing linguistic information through hearing, 
with or without amplification, which adversely affects educational 
performance.

[[Page 175]]

    (2) Hard of hearing means a hearing impairment, whether permanent or 
fluctuating, which adversely affects a child's educational performance 
but which is not included under the definition of deaf in this section.
    (3) Mentally retarded means significantly subaverage general 
intellectual functioning existing concurrently with deficits in adaptive 
behavior and manifested during the developmental period, which adversely 
affects a child's educational performance.
    (4) Severely multi-handicapped means concomitant impairments (such 
as mentally retarded-blind; mentally retarded-deaf) the combination of 
which causes such severe educational problems that they cannot be 
accommodated in regular educational programs or in special education 
programs solely for one of the impairments. The term includes deaf-blind 
children.
    (5) Orthopedically impaired means a severe orthopedic impairment 
which adversely affects a child's educational performance. The term 
includes impairments caused by congenital anomaly (e.g., clubfoot, 
absence of some member, etc.), impairments caused by disease (e.g., 
poliomyelitis, bone tuberculosis, etc.), and impairments from other 
causes (e.g., cerebral palsy, amputations, and fractures or burns which 
cause contractures).
    (6) Other health impaired means limited strength, vitality or 
alertness, due to chronic or acute health problems such as a heart 
condition, tuberculosis, rheumatic fever, nephritis, asthma, hemophelia, 
epilepsy, lead poisoning, leukemia, or diabetes or the existence of a 
physical or mental impairment which substantially limits one or more 
major life activities, but which is not covered in paragraphs (i) (1) 
through (12) of this section.
    (7) Emotionally disturbed means a condition exhibiting one or more 
of the following characteristics over a long period of time and to a 
significant degree, which adversely affects educational performance and 
requires small group instruction, supervision, and group counseling:
    (i) An inability to learn which cannot be explained by intellectual, 
sensory, or health factors;
    (ii) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers:
    (iii) Inappropriate types of behavior or feelings under normal 
circumstances;
    (iv) A general pervasive mood of unhappiness or depression; or
    (v) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (8) Specific learning disability means a disorder in one or more of 
the basic psychological processes involved in understanding or in using 
language, spoken or written, which may manifest itself in an inability 
to listen, think, speak, read, write, spell, or to do mathematical 
calculations. The term includes such conditions as perceptual handicaps, 
brain injury, minimal brain dysfunction, dyslexia, and developmental 
aphasia. The term does not include children who have learning problems 
which are primarily the result of vision, hearing, or motor handicaps, 
or mental retardation, or of environmental, cultural, or economic 
disadvantage.
    (9) Speech impaired means a communication disorder, such as 
stuttering, impaired articulation, or a voice impairment, which 
adversely affects a child's educational performance.
    (10) Visually handicapped means a visual impairment which, even with 
correction, adversely affects a child's educational performance. The 
term includes partially seeing, but not fully blind, children.
    (11) Severely emotionally disturbed means a condition such as 
schizophrenia, autism or the presence of the following characteristics 
over a prolonged period of time and to a marked degree, which seriously 
affects educational performance and requires intensive individual 
therapy (which may be conducted either in or out of the school setting), 
individual instruction, and supervision:
    (i) An inability to learn which cannot be explained by intellectual, 
sensory, or health factors;
    (ii) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers:

[[Page 176]]

    (iii) Inappropriate types of behavior or feelings under normal 
circumstances;
    (iv) A general pervasive mood of unhappiness or depression; or
    (v) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (12) Severely and profoundly retarded means a degree of mental 
retardation (as defined in paragraph (i)(3) of this section) which 
severely restricts and delays major aspects of intellectual functioning 
so as to require intensive small group instruction and supervision.
    (13) Students requiring home/hospital based instruction means 
students provided a program of instruction in a home or hospital setting 
because in the judgement of a physician a student cannot receive 
instruction in a regular public school facility without endangering the 
health or safety of the student or of other students.
    (14) Multihandicapped means concomitant impairments (such as 
mentally retarded with a minor additional handicap such as speech 
impaired) the combination of which causes educational problems that can 
not be accommodated in regular education programs or in part-time 
special education programs.
    (15) Blind means the possession of a central vision acuity of 20/200 
or less in the better eye with correcting glasses or a peripheral field 
of vision so contracted that its widest diameter is less than 20%.
    (j) Resident means a student officially enrolled in the residential 
care program of a Bureau operated or funded school and actually 
receiving supplemental services provided to all students who are 
provided room and board in a boarding school or a dormitory during those 
weeks when student membership counts are conducted. Such students must 
be members of the instructional program in the same boarding school in 
which they are counted as residents. To be counted as dormitory 
residents, students must be enrolled in and be current members of a 
public school in the community in which they reside.

[44 FR 61864, Oct. 26, 1979, as amended at 67 FR 52830, Aug. 13, 2002]



Sec. 39.12  Instructional funding.

    (a) Schools are to use the following sources to fund their special 
Education programs:
    (1) 15 percent of the Indian Student Equalization Program (ISEP) 
funds generated by their ADM; and
    (2) Funds under Part B of the Individuals with Disabilities 
Education Act (IDEA), if the 15 percent of ISEP funds is inadequate to 
fund the services needed by all eligible ISEP students with 
disabilities.
    (b) All ISEP special education funds must be spent before the need 
for Part B of IDEA funds can be demonstrated. Part B funds are designed 
to provide for special education needs not funded by ISEP. By 
demonstrating that 15 percent of the ISEP base instructional funds were 
spent on special education, there is support for the need for Part B 
funds.
    (c) To receive ISEP special education funding a student must be:
    (1) At least 5 years old by December 31 to be counted as a 
kindergarten student;
    (2) At least 6 years old by December 31 to be counted as a first 
grade student; and
    (3) Under 22 years of age and not have received a high school 
diploma or its equivalent on the first day of full attendance during the 
ISEP student count week.
    (d) A school may spend ISEP funds on school-wide programs to benefit 
all students (including those without disabilities) only if all of the 
following conditions are met:
    (1) The school sets aside 15 percent of the basic instructional 
allotment to meet the needs of students with disabilities;
    (2) The school can document that it has met all needs of students 
with disabilities and addressed all components of IDEA; and
    (3) There are unspent funds after the conditions in paragraphs 
(d)(1) and (d)(2) of this section are met.
    (e) Public Law 100-297 establishes a weighted unit for each ISEP-
eligible full-time student that is gifted and talented. The weighted 
unit for gifted and talented is 2.0 weighted student units minus the 
basic instructional program weight by grade level. The weights for

[[Page 177]]

eligible gifted and talented students must be computed according to the 
following revised weighted student unit factors:

------------------------------------------------------------------------
                                                                 Add-on
                         Grade level                             weight
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    (f) This paragraph applies to disabled students who are eligible for 
ISEP and were not counted during the ISEP Student Count Week. Schools 
must fund services for these students using the 15 percent of the ISEP 
funds based upon the school ADM for those students counted during the 
ISEP Student Count Week. See paragraph (a)(2) of this section for 
further guidance.
    (g) To compute the funding for individual elementary and secondary 
children, schools must use the weighted student unit factors in 
paragraphs (g)(1) and (g)(2) of this section.
    (1) The factors for basic programs are contained in the following 
table:

------------------------------------------------------------------------
                                                                  Base
                        Basic programs                          weights
------------------------------------------------------------------------
Kindergarten.................................................       1.15
Grades 1 to 3................................................       1.38
Grades 4 to 6................................................       1.15
Grades 7 to 8................................................       1.38
Grades 9 to 12...............................................       1.50
------------------------------------------------------------------------

    (2) For each student in the intense bilingual supplemental program, 
the school must add to the base weight an add-on weight of .20.

[67 FR 52830, Aug. 13, 2002]



Sec. 39.13  Residential funding.

    Basic funds for student residential purposes must be computed 
according to the following weighted student unit factors:

------------------------------------------------------------------------
                                                                 Add-on
                        Basic programs                          weights
------------------------------------------------------------------------
Grades 1 to 3................................................       1.40
Grades 4 to 8................................................       1.25
Grades 9 to 12...............................................       1.25
Intensive Residential Guidance...............................        .50
------------------------------------------------------------------------


[67 FR 52830, Aug. 13, 2002]



Sec. 39.14  Entitlement for small schools.

    To compensate for the additional costs of operating small schools, 
qualified schools shall receive the following adjustments:
    (a) Instructional programs in day and boarding schools. For each 
separate small school having an instructional average daily membership 
count (called x) of less than 100 students, the formula [(100-x) divided 
by 200] times x shall be used to generate add-on weighted pupil units 
for each such school.
    (b) Boarding school residential programs. For each separate small 
boarding school having a resident average daily membership count (called 
y) of less than 100 students, the formula [(100-y) divided by 200] times 
y shall be used to generate add-on weighted pupil units for each such 
boarding school.
    (c) Dormitory residential programs serving public schools. For each 
small dormitory program having an average daily membership count (called 
z) of less than 100 students, the formula [(100-z) divided by 200] times 
z shall be used to generate add-on weighted pupil units for each 
dormitory.



Sec. 39.15  Alaskan school cost supplements.

    To meet the statutory requirements for a salary supplement for 
Alaskan educational staff, and add-on weight of .25 will be used as a 
factor by which all pupil program-generated weighted students shall be 
supplemented. Such generated Alaskan cost supplements will be added to 
the weighted pupil units generated by each school in the same manner as 
small school units.



Sec. 39.16  Computation of school entitlements.

    The sum of all weighted student units, including any small school 
and any Alaskan school cost supplements shall be computed for each 
school under the management of the Director. The total number of units 
generated by each approved school shall be multiplied by a base dollar 
value which is equivalent to a base weight of 1.0 in the

[[Page 178]]

formula. This base value shall be computed annually by the Director by 
dividing the total of all weighted students (WSU) generated by all 
approved schools into the total amount appropriated for distribution 
through the Indian School Equalization Formula.



Sec. 39.17  Comparability with public schools.

    (a) In no case shall a Bureau or contract school attended by an 
Indian student receive less under these regulations than the average 
payment from the Federal funds received per Indian student, under other 
provisions of law, by the public school district in which the student 
resides. Any school which is funded at a lower level per student under 
the ISEP than either the average daily expenditure per student for 
instructional costs in the public schools in the State in which it is 
located, or the amount per Indian student which the local public school 
district in which it is located receives from all Federal funding 
sources, shall present documentation of this fact to the Director of the 
Office of Indian Education Programs.
    (b) Upon verification that comparisons in the documentation received 
cover comparative expenditures, and that the inequity indeed exists, the 
Director shall adjust the school's allocation to equal the payment per-
Indian student of the public school district or State involved.
    (c) Funds for such adjustment shall be taken from the Formula 
Implementation Set Aside established under Sec. 39.78 of these 
regulations.



Sec. 39.18  Recomputations of current year entitlements.

    The Director shall continuously monitor the processes by which the 
final allocation of each school's entitlement is made. When changes 
occur either in the total amount of funds available for the operations 
of schools or in the total number of weighted student units for all 
schools due to a change in the number of weighted student units reported 
or altered by auditing, the Director shall consider whether adjustments 
are necessary in order that the full available appropriations are fairly 
allocated to the schools, and that all funds are fully allotted to 
schools.



Sec. 39.19  Phase-in provisions.

    (a) Limits on excess gains. No school shall receive a percentage 
increase in its total fund entitlement, over the comparable budget 
amount per school in the FY 79 Bureau Education budget, which is greater 
than the following percentage ratios:
    (1) In FY 80--20%
    (2) In FY 81--70%
    (b) Limits on excess losses. No school shall receive a percentage 
decrease in its total fund entitlement, below the comparable budget 
amount in the FY 79 Bureau Education budget, which is greater than the 
following percentage ratios:
    (1) In FY 80--10%
    (2) In FY 81--30%
    (c) Effects of limits on losses and gains. Local school gains in 
excess of the above percentage limits for each of the limited years 
shall be returned to the common base for all schools and distributed 
through the formula. Funds to limit losses in excess of the above limits 
shall be withdrawn from the common base for all schools and distributed 
to the schools subject to such excess losses.
    (d) Transfer of fiscal accountability. To allow time for developing 
fiscal accountability, knowledge, skill and responsibility at the local 
school level and in order to support accountability by responsible 
Fiscal Agents under section 3679 of the Revised Statutes (the Anti-
Deficiency Act), a period of one year (FY 1980) shall be used during 
which the legal allottee for each Bureau-operated school shall be the 
Education Superintendent of the Agency within which the school is 
located. In the case of off-reservation boarding schools and other 
Bureau-operated schools not served by an Agency Education Office, the 
Area Education Director shall be the legal allottee. Further allocation 
of funds under this rule shall be fully in accordance with the Indian 
School Equalization Program and Formula, and expenditures shall be made 
in accordance with the financial planning provisions of section E of 
this rule.

[[Page 179]]

    (e) Beginning in FY 1981, the allottee shall be as otherwise 
determined in this rule.



Sec. 39.20  Development of uniform, objective and auditable student weighted 
area placement criteria and guidelines.

    The Director shall develop:
    (a) Uniform, objective and auditable placement criteria and 
guidelines for placement of students in dormitories and residential care 
programs of boarding schools and in special weighted program areas which 
expand upon the definitions in this part; and
    (b) A uniform and auditable system of enrollment criteria and 
attendance boundaries for each school in the Bureau educational program.

The Director shall publish these criteria and guidelines in the Bureau 
Manual (BIAM) and widely disseminate them to each school prior to 
September 1, 1980, so that appropriate student placements can occur 
before the FY 1981 October student count.



Sec. 39.21  Future considerations for weighted programs.

    (a) Within twelve months of the final publication of this rule, the 
Director shall review the following factors in depth, and determine 
whether to incorporate each into the weighted pupil formula:
    (1) A rural isolation adjustment.
    (2) A staff cost adjustment.
    (3) A gifted and talented student program.
    (4) A vocational education program.
    (5) A facilities operation and maintenance program.
    (6) Additional institutional size factors.
    (b) The Director may also recommend incorporation of other factors, 
based upon the Bureau's experience in the first year's operation of the 
ISEP, and upon the Standards to be developed under section 1121 of the 
Act.
    (c) The Director shall also review the adequacy of the weighted 
factors, procedures, criteria and definitions now in this rule, 
throughout part 39. On the basis of this review, the Director shall 
present a comprehensive report of findings, with recommendations for 
amendment of this rule, to the Secretary, who shall incorporate them in 
a Notice of Proposed Rulemaking to include a minimum of sixty (60) days 
for public comment.



Sec. 39.22  Authorization of new program development, and termination of 
programs.

    (a) Within one year of the final publication of this rule, the 
Secretary shall develop uniform procedures and criteria for the 
authorization of new schools where no Bureau funded or operated school 
program has previously existed, and for authorization of expansions of 
existing Bureau funded or operated school programs to serve additional 
age groups not previously served. These procedures and criteria shall be 
published as amendments to this rule under a new Notice of Proposed 
Rulemaking, which shall contain provisions for a minimum of sixty (60) 
days of public review and comment prior to final publication.
    (b) Procedures and criteria developed under this section shall be 
integrated with existing procedures under 25 CFR part 900 for 
determining contractable functions of the Bureau, in order to produce a 
coherent system for authorization of Tribally initiated program 
development under contracting procedures of Pub. L. 93-638, which is 
compatible with Bureau initiated program development.
    (c) Procedures and criteria developed under this rule shall also 
contain provisions for making decisions regarding closing schools and 
terminating Bureau programs of education. These shall provide for full 
consultation with the Indian persons and Tribes served by the programs 
and schools involved in any such decisions.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 64 FR 13895, Mar. 23, 1999]



Sec. 39.23  Review of contract schools supplemental funds.

    Before the end of formula phase-in, the Director shall consider the 
impact on equalization of supplemental funds appropriated for aid to 
schools under the Johnson O'Malley Act and under title IV of the Indian 
Education Act, which are available to contract schools

[[Page 180]]

but not to Bureau schools, and determine appropriate adjustments, if 
any. Any adjustments in the ISEP which results from this review shall be 
effected by formal revision of this rule, under a Notice of Intended 
Rulemaking published in the Federal Register, and shall be subject to 
public comment for a minimum of sixty (60) days prior to final 
rulemaking.



           Subpart C_Formula Funding Administrative Procedures



Sec. 39.30  Definitions.

As used in this subpart, the term:
    (a) Certifying the validity of student counts means that counts of 
student ADM have been accurately recorded in compliance with 
specifications of these rules, and that the Agency Superintendent of 
Schools, the local school supervisor, and local school board 
chairperson, where a school board exists, testify to and confirm the 
correctness of this count.
    (b) Count week means the last full week in September for the 
purposes of calculating allotments.
    (c) Student classification means any special student need area that 
receives a separate weighting through the Indian School Equalization 
Formula.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 36368, Sept. 17, 1984]



Sec. 39.31  Conditions of eligibility for funding.

    (a) To be eligible for direct formula funding as established in 
subpart B of this part, a day school, boarding school, or dormitory must 
meet minimum standards, or, failing to do so, must include in its 
financial plan steps acceptable to the Director for taking corrective 
action to meet the standards to be prescribed pursuant to section 1121 
of the Education Amendments of 1978 (Pub. L. 95-561; 25 U.S.C. 2001). 
Until such standards are prescribed, the Director shall determine 
eligibility for funding in accordance with established procedures for 
authorizing Bureau operated schools.
    (b) To be eligible for direct formula funding, a tribally operated 
day or boarding school or dormitory must meet the requirements of part 
900 of this chapter (25 CFR part 900) for receipt of Bureau Education 
funds under contracts for school operation.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 64 FR 13895, Mar. 23, 1999]



Sec. 39.32  Annual computation of average daily membership.

    (a) Average daily membership (ADM) as defined in Sec. 39.2(f) shall 
be determined during the last full school week in September during which 
all students eligible under the definition shall be counted by student 
program classification.
    (b) The Director shall direct the receipt and management of 
information necessary to obtain timely ADM reports from schools. Agency 
education offices and, in the case of off-reservation boarding schools, 
Area education offices together with each school's supervisor and school 
board chairperson where a board exists shall be responsible for 
certifying the validity of each school's student counts. The September 
ADM will be used to determine final allotments for the school year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.33  Special education unduplicated count provision.

    In counting special education ADM with the exception of speech 
therapy, no child shall be counted or funded twice for participation in 
more than one special education program.



Sec. 39.34  Substitution of a count week.

    A school may petition the Director to substitute another week in the 
same month for the specified count week if it can be established that to 
use the specified count week would result in grossly inaccurate student 
counts. Where tribal ceremonial days are known in advance, such a 
petition shall be submitted in advance of the determined count week.



Sec. 39.35  Computation of average daily membership (ADM) for tentative 
allotments.

    Tentative allotments for each future year's funding shall be based 
on the

[[Page 181]]

ADM for the September count week of the current year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.36  Declining enrollment provision.

    If the decline of a school's average daily membership exceeds ten 
percent in any given school year, the school may elect to request 
funding based on the average of the current and previous years' 
September ADM count.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.37  Auditing of student counts.

    The Secretary shall provide for auditors as required to assure 
timeliness and validity in reporting student counts for formula funding.



Sec. 39.38  Failure to provide timely and accurate student counts.

    (a) Responsible Bureau school, Agency, Area, and Central Office 
administrators may be dismissed for cause, or otherwise penalized, for 
submission of invalid or fraudulent annual student ADM counts or 
willfully inaccurate counts of student participation in weighed program 
areas. A person who knowingly submits or causes to be submitted to a 
Federal official or employee false information upon which the 
expenditure of Federal funds is based, may be subject to criminal 
prosecution under provisions such as sections 286, 287, 371, or 1001 of 
title 18, U.S. Code.
    (b) Failure of responsible Federal officials to perform 
administrative operations which are essential to the ISEP, on a timely 
basis, shall result in swift disciplinary action by Bureau supervisory 
personnel, under existing procedures. Failure or refusal of Bureau 
supervisory personnel to take disciplinary action shall result in 
disciplinary action against them by higher level supervisors.



Sec. 39.39  Delays in submission of ADM counts.

    (a) If a Bureau operated or funded school delays submission of an 
ADM count, by more than (2) weeks beyond the final count week in 
November, for that school, the Director shall set aside an amount equal 
to the tentative allotment for that school out of the funds available 
for allotment, and shall proceed to compute the initial allotments for 
all other schools in the Bureau school system, based upon remaining 
funds available for allotment. The allotment for the school which has 
failed to submit a timely ADM count shall be computed when the ADM count 
is received, but shall not exceed the amount set aside therefore. Any 
amount remaining in the set-aside fund, after computation of the 
allotment, shall be transferred into the Formula Implementation Set-
Aside Fund, and distributed in accordance with provisions of Sec. 39.78 
in subpart F.
    (b) In no case shall the Director delay the computation of initial 
allotments for schools which have submitted timely ADM counts while 
waiting for those schools which have failed to submit.



           Subpart D_Direct Allotment of Formula Entitlements



Sec. 39.50  Definitions.

    As used in this subpart, the term:
    (a) Apportionment means that part of a school's allotment received 
each quarter as an authorization to obligate funds.
    (b) Approved apportionment schedules means that approval given for 
the quarterly obligation of funds for a given appropriation of funds for 
the Bureau.
    (c) Authorization to obligate means that approval given to a school 
to incur obligations of funds against a given appropriation.
    (d) Final allotment means that notice of funds available to schools, 
based on the September student count as computed through the Indian 
School Equalization Formula (ISEF) based on full distribution of Indian 
School Equalization Program (ISEP) funds available for the fiscal year.
    (e) Initial allotment means that notice of funds available to 
schools based on the September student count as computed through the 
Indian School Equalization Formula prior to any adjustments due to 
fluctuating student counts.

[[Page 182]]

    (f) Responsible fiscal agent means the local school supervisor of a 
Bureau operated school except where such authority is designated to the 
Agency Superintendent of Education by a school board decision of record 
or by a written agreement signed by both parties. For contract schools, 
the responsible fiscal agent shall be designated in an action of record 
by the contractor.
    (g) Tentative allotment means that notice of funds available to 
schools based on the September student count as computed through the 
Indian School Equalization Formula based on a proposed appropriation in 
the President's budget for the next fiscal year.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 36368, Sept. 17, 1984]



Sec. 39.51  Notice of allotments.

    The Director shall notify school administrators and boards of 
allotments of funds based on the September ADM count established under 
subpart B of this part according to the following schedule:
    (a) Tentative allotments shall be made by March 15 of the prior 
fiscal year;
    (b) Initial allotments shall be made not later than November 15 of 
the fiscal year; and
    (c) Final allotments shall be made not later than January 15 of the 
fiscal year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.52  Initial allotments.

    The Assistant Secretary--Indian Affairs, as requested by the 
Director, shall make initial allotments to Bureau operated schools, 
Agency Education Offices, and Central and Area Offices. The Assistant 
Secretary--Indian Affairs shall make initial allotments for tribally 
operated schools to appropriate Agency Superintendents of Education, or 
as otherwise provided by the Director.



Sec. 39.53  Obligation of funds.

    (a) Authority to obligate funds in the Bureau operated schools shall 
be governed by provisions of the Bureau Manual (42 BIAM).
    (b) Authority to obligate funds in tribally operated contract 
schools shall be governed by contracting procedures of 25 CFR part 900.
    (c) Authority to obligate funds in all Bureau funded and operated 
schools shall be based upon the tentative allotment (Sec. 39.51) for 
the period beginning October 1 of any fiscal year. The tentative 
allotment as restricted by a continuing resolution, if applicable, would 
govern until computation and notification of initial allotments as 
described in this sub-part, as adjusted by the Director in accordance 
with Sec. Sec. 39.75, 39.78, 39.90, 39.102 and 39.111.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 64 FR 13895, Mar. 23, 1999]



Sec. 39.54  Apportionment of entitlements to schools.

    (a) Bureau operated schools. The Director shall make quarterly 
apportionments directly to the local school supervisor or to the 
school's responsible fiscal agent as specifically delegated in 
accordance with Sec. 39.55 of this part. Such quarterly apportionments 
will be made as determined in Sec. 39.53 of this part.
    (b) Contract schools. The Agency Superintendent of Education, or 
another agent as designated by the Director, shall be responsible 
through the contracting officer in accordance with 25 CFR part 900 for 
effecting and adjusting contracts with tribally operated schools.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 64 FR 13895, Mar. 23, 1999]



Sec. 39.55  Responsible local fiscal agent.

    The responsible fiscal agent shall:
    (a) Expend funds solely in accordance with the local educational 
financial plan, as ratified or amended by the local school board, unless 
in the case of Bureau operated schools, this plan has been overturned 
under the appeal process prescribed in these rules, in which case 
expenditures shall be made in accordance with the local educational 
financial plan as determined by the Agency Superintendent of Education.
    (b) Sign all documents required for the obligation and or payment of 
funds

[[Page 183]]

and documentation of receipt of goods and services.
    (c) Report at least quarterly to the local school board on the 
amounts expended, amounts obligated and amounts currently remaining in 
funds budgeted for each program of services in the local financial plan.
    (d) Recommend changes in budget amounts, as required for effective 
management of resources to carry out the local financial plan, and 
incorporate such changes in the budget as are ratified by the local 
school board, subject to provisions for appeal and overturn.



Sec. 39.56  Financial records.

    Each responsible fiscal agent receiving funds under the ISEP shall 
maintain expenditure records in accordance with financial planning 
system procedures as required herein.



Sec. 39.57  Access to and retention of local educational financial records.

    The Comptroller General, the Assistant Secretary, the Director, or 
any of their duly authorized representatives shall have access for audit 
and examination purposes to any of the local schools' accounts, 
documents, papers and records which are related or pertinent to the 
school's operation. The provisions of 25 CFR 271.47 will be applicable 
in the case of tribally contracted schools.



Sec. 39.58  Expenditure limitations for Bureau operated schools.

    (a) Expenditure of allotments shall be made in accordance with 
applicable federal regulations and local education financial plans, as 
defined in Sec. 39.60(b) of subpart E.
    (b) Where there is disagreement between the Area or Agency support 
service staff and the responsible fiscal agent regarding the propriety 
of the obligation or disbursement of funds, appeal shall be made to the 
Director.



               Subpart E_Local Educational Financial Plan



Sec. 39.60  Definitions.

    As used in this subpart, the term:
    (a) Consultation means soliciting and recording the opinions of 
school boards regarding each element in the local financial plan, as set 
forth below, and incorporating those opinions to the greatest degree 
feasible in the development of the local educational financial plan at 
each stage thereof.
    (b) Local educational financial plan means that plan which programs 
dollars for educational services for a particular Bureau operated or 
funded school which has been ratified in an action of record by the 
local school board, or determined by the superintendent under the appeal 
process set forth in this subpart.
    (c) Budget means that element in the local educational financial 
plan which shows all costs of the plan by discrete programs and sub-cost 
categories thereunder.



Sec. 39.61  Development of local educational financial plans.

    A local educational financial plan shall be developed by the local 
school supervisor, in active consultation with the local school board, 
based on the tentative allotment received as provided in Sec. 39.51.



Sec. 39.62  Minimum requirements.

    The local financial plan shall include, at a minimum, each of the 
following elements:
    (a) Separate programing of funds for each group of Indian students 
for whom a discrete program of services is to be provided. This must 
include at a minimum each program for which funds are allotted to the 
school through the Indian School Equalization Program;
    (b) A brief description, or outline, of the program of student 
services to be provided for each group identified;
    (c) A budget showing the costs projected for each program, as 
determined by the Director through the development of a uniform cost 
accounting system related to the Indian School Equalization Program;
    (d) A statement of the percentage relationship between the total of 
the anticipated costs for each program and the amount the students 
served by that program will generate under the Indian School 
Equalization Formula. Beginning in FY 1981, there shall also be included 
a statement of the cost incurred for each program in the preceding 
fiscal year and the amount received for

[[Page 184]]

each such program as the result of the Indian School Equalization 
Formula. For exceptional child programs the plan must provide that at 
least 80% of the funds generated by students served by the program be 
spent on those students;
    (e) A provision for certification by the chairman of the school 
board that the plan as shown, or as amended, has been ratified in an 
action of record by the school board; or
    (f) Except in the case of contract schools, a provision for 
certification by the Agency Superintendent of Education that he or she 
has approved the plan as shown, or as amended, in an action overturning 
the rejection or amendment of the plan by the school board.



Sec. 39.63  Procedures for development of the plan.

    (a)(1) Within thirty (30) days after receipt of the tentative 
allotment for the coming school year, the school supervisor shall meet 
and consult with the local school board on the local financial plan.
    (2) The school supervisor shall discuss at this meeting the present 
program of the school and any proposed changes he or she wishes to 
recommend. The school board members shall be given every opportunity to 
express their own ideas as well as their views on the supervisor's 
recommendations. Subsequently the school supervisor shall present a 
draft plan to the school board with recommendations concerning each of 
the elements outlined in this subpart.
    (b) Within sixty (60) days of receipt of the tentative allotment, 
the school board shall review the local financial plan as prepared by 
the school supervisor and, by a quorum vote, shall have the authority to 
ratify, reject or amend such financial plan.
    (c) The school board shall have the authority, at any time following 
the ratification of the financial plan on its own determination or in 
response to the supervisor, to revise such plan to meet needs not 
foreseen at the time of preparation of the plan.
    (d) If the supervisor does not wish to file an appeal, he or she 
shall transmit a copy of the approved local financial plan within two 
weeks of the school board action, along with the official documentation 
of the school board action, to the office of the Agency Superintendent 
of Education. Later revisions to the financial plan must be transmitted 
in the same manner.
    (e) In the event that the school board does not act within the 
prescribed deadline, the financial plan shall be referred to the Agency 
Superintendent of Education for ratification, subject to subsequent 
amendment by the school board in accordance with paragraph (c) of this 
section.
    (f) The Agency Superintendent of Education will review the local 
financial plan for compliance with prescribed laws and regulations or 
may refer the plan to the Solicitor's Office for legal review. If the 
Superintendent notes any problem with the plan, he or she shall notify 
the local board and local supervisor of the problem within two weeks of 
receipt of the local financial plan and shall make arrangements to 
assist the local school supervisor and board to correct the problem. If 
the Superintendent is not able to correct the problem, it shall be 
referred to the Director of the Office of Indian Education.



Sec. 39.64  Procedures for financial plan appeals.

    (a) If the supervisor of a school finds an action of the local 
school board, in rejecting or amending the local financial plan, to be 
unacceptable in his or her judgment as a professional educator, the 
supervisor may appeal to the Agency Superintendent of Education under 
the following procedures and conditions:
    (1) The appeal must be presented in writing, within ten (10) 
consecutive days of the supervisor's receipt of the school board 
decision which is appealed.
    (2) The written appeal shall contain, at a minimum, the following 
information and documentation:
    (i) All descriptive information concerning the element(s) in the 
local financial plan being appealed, substantially as presented to the 
school board prior to its decision.

[[Page 185]]

    (ii) Official documentation of the school board's decision amending 
or rejecting the element(s) being appealed.
    (iii) A statement of the school supervisor's reasons for appealing 
the board's actions.
    (iv) Signed certification by the supervisor that his/her reason for 
appeal has been presented to the chairperson of the school board, and 
that the school board has been offered full opportunity to submit a 
counter statement to the Superintendent.
    (3) If the supervisor of the school is also the Superintendent, the 
appeal shall be made following the above procedures to the Director, who 
shall follow procedures set forth below, as acting Superintendent for 
the appeal.
    (b) Within ten (10) consecutive days of receiving the appeal, the 
Agency Superintendent of Education shall review the appeal documents to 
determine if they are complete according to the criteria established in 
this subpart, and if so shall notify both the school supervisor and the 
school board of a date for an informal conference.
    (c) Within twenty-five (25) consecutive days of receiving the 
referral for approval, the Superintendent shall:
    (1) Hear any arguments on either or both sides of the appeal 
issue(s) at the option of either the supervisor of the school board 
involved.
    (2) Following the informal conference, either sustain or reject the 
appeal for good cause, which the Superintendent shall set out in writing 
to both the supervisor and school board.
    (d) Nothing in this subsection shall be construed as enabling the 
supervisor of a tribally operated school to appeal decisions of a 
contract school board to the Agency Superintendent for Education, nor as 
empowering the Agency Superintendent for Education to overturn any 
action of a contract school board under this appeal process as 
established in Pub. L. 93-638.
    (e) Within 180 days after the effective date of this subpart, the 
Assistant Secretary shall develop and publish in the Federal Register 
procedures for a formal hearing process which shall be available to 
school boards who believe their decisions regarding the financial plan 
have been overturned for other than good cause.



                       Subpart F_Contingency Funds



Sec. 39.70  Definitions.

As used in this subpart, the term:
    (a) Cumulative total means the sum of all funds carried over from 
the previous fiscal year(s) as unobligated and the amount for the 
current year.
    (b) Temporary replacement means the substitution of a structure on a 
temporary basis in lieu of the original permanent structure that has 
been lost to use. The temporary use will expire at the time that 
arrangements are completed for the availability of a structure similar 
to the original.



Sec. 39.71  Establishment of the School Disaster Contingency Fund.

    The Bureau's annual budget justifications shall identify an amount 
for a separate budget account entitled the School Disaster Contingency 
Fund (SDCF). All schools and dormitories receiving support under the 
provisions of subparts B and C of this part are eligible for disaster 
aid from this contingency fund.



Sec. 39.72  Continuing and cumulative provisions.

    Unobligated funds from the School Disaster Contingency Fund shall be 
continued over at the end of a fiscal year in the same account for the 
next year, except when otherwise provided in appropriations acts. New 
funds shall be added when appropriated but the Fund should not exceed a 
$1.5 million cumulative total unless otherwise determined by the 
Assistant Secretary.



Sec. 39.73  Purposes.

    Disbursements from the School Disaster Contingency Fund shall be for 
the following purposes:
    (a) Costs of replacement of items in the following categories 
including shipment and installation, in the event of their destruction 
by earthquake, fire, flood, storm, or other ``acts of God,'' and acts of 
massive and catastrophic vandalism where such costs are not already 
covered in an insurance policy in force at the time of destruction and 
where such destruction could not have been prevented by prudent action 
by the officials responsible for the care of such items:

[[Page 186]]

    (1) Educational materials and supplies.
    (2) Equipment and furnishings.
    (3) Dormitory materials and supplies, for student use, and dormitory 
equipment and furnishings, including those necessary for staff living 
space, if integral to the dormitory operation.
    (4) Food services supplies, furnishings and equipment not a fixed 
part of structures.
    (5) Office supplies and equipment for minimum essential 
administrative operations.
    (6) Janitorial supplies and cleaning equipment.
    (7) Student clothing and personal supplies if destroyed along with a 
school facility.
    (8) Fuel supplies, tanks, lines, connections, meters, etc.
    (9) Transportation equipment not otherwise provided for through the 
General Services Administration.
    (10) Costs of repair of utility systems or components thereof, as 
necessary to restore utility services.
    (b) Costs of temporary replacement of school facilities in the event 
of their destruction by earthquake, fire, flood, storm or other ``acts 
of God,'' until they can be reconstructed. These costs may include 
purchase of or movement of portable structures, including costs of 
delivery, installation, and connection to utility systems. They may also 
include costs of any fixed equipment which is integral to such 
structures. Structure types for which such temporary replacement costs 
may be paid or reimbursed are as follows:
    (1) Employee quarters, if required for employee housing due to the 
isolation of the duty station, and on other housing is available within 
a reasonable commuting distance. Reasonable commuting distance will be 
determined under existing policies or by the Director.
    (2) Dormitories, including employee apartment space if integral to 
the operation of the dormitory.
    (3) Offices required for minimum essential administrative operations 
at the local school level.
    (4) Academic facilities, including classrooms, kindergartens, 
libraries and special instructional spaces such as vocational shops and 
home economics rooms.
    (5) Kitchens and dining facilities, including laundry and 
multipurpose spaces.
    (6) Infirmaries, clinics and health service spaces, in school 
locations in which such services are not otherwise available.
    (7) Separate restroom facilities, if none are otherwise available 
for operation of instructional and dormitory programs.



Sec. 39.74  Application procedures.

    Application for disbursement from the School Disaster Contingency 
Fund shall be made to the Director of the Office of Indian Education 
Programs, through the Agency Superintendent of Education for the school 
affected. Applications shall be subject to review and comment by the 
Superintendent, and the Area Director for Education of the Area in which 
the school is located, but shall not require the approval of these 
officers. Such review and comment activities shall be carried out 
concurrently with the Director's processing of the application so that 
there are no delays in the transmission of the application to the 
Director. The Director shall develop such application forms and requests 
for information and documentation as are necessary to prove both loss 
and the fact that replacement costs are outside the normal budgetary 
capacity of the school operation at either the local school, Agency or 
Area levels.



Sec. 39.75  Disbursement procedures.

    Disbursements from the SDCF shall be made only on the direct 
authorization of the Director, on the merits of each such application 
received, on a first come, first served basis and in amounts determined 
at the Director's discretion in accordance with the purposes and 
expenditure prohibitions set forth in this section.



Sec. 39.76  Prohibitions of expenditures.

    (a) The following costs shall not be reimbursed or paid under the 
SDCF:
    (1) Capital expenditures for construction of permanent facilities.
    (2) Capital expenditures for reconstruction or refurbishment of 
facilities

[[Page 187]]

no longer in use except where such expenditure is the most cost 
effective way of temporarily replacing other destroyed facilities.
    (3) Temporary replacement of facilities or replacement of equipment 
which has simply become outmoded and obsolete, or which has been 
``condemned'' or declared unserviceable by administrative procedures, 
which is either still in existence or has been razed or destroyed as the 
result of an administrative decision.
    (4) Costs of continued normal program operations which are not 
increased by a disaster.
    (5) Personnel costs, except for temporary personnel hired to meet an 
emergency situation.
    (6) Start-up costs for new or expanding school programs.
    (7) Costs of repairs necessitated by neglect, or failure to provide 
routine scheduled maintenance and minor repair.
    (8) Replacement costs of personal property of school employees, 
regardless of value or circumstances of destruction.
    (9) General budgetary shortfalls due to improper fiscal management.
    (10) Budgetary shortfalls from a past fiscal period, after funds 
have been carried forward in the SDCF to a new fiscal period.
    (11) Costs of replacement of items stolen or destroyed by deliberate 
vandalism, neglect, or abandonment.
    (12) Costs of items, services or activities for which budgetary 
provisions are made in other budget categories of the Bureau not subject 
to distribution under the Indian School Equalization Program.
    (b) Temporary replacement costs for the following structure types 
shall not be paid or reimbursed from the SDCF:
    (1) Recreational structures, such as auditoriums, field houses, 
clubs, canteens, chapels, student centers, grandstands, gymnasiums, etc.
    (2) Auxiliary buildings not used in student instructional or 
dormitory programs, such as warehouses, storage sheds, garages, 
firehouses, maintenance shops, law enforcement centers, instructional 
materials and audio-visual centers, and employees' clubs.
    (3) Temporary replacement costs shall be paid or reimbursed only to 
the extent necessary to permit expeditious continued operation of the 
school dormitory care programs affected by the destruction of 
facilities.



Sec. 39.77  Transfer of funds from Facilities Engineering for other 
contingencies.

    In order to reimburse schools for the costs of unforeseen and 
extraordinary procurement costs and for major repairs of reconstruction 
resulting from the disaster, the Director may request a transfer of 
funds from funds appropriated for Bureau Facilities Engineering to the 
School Disaster Contingency Fund for such purposes. When a separate 
formula is established by regulation for school maintenance and 
operations, an appropriate separate contingency fund shall be 
established to cover such costs.



Sec. 39.78  Establishment of a formula implementation set-aside fund.

    There shall be set aside an amount not to exceed $2 million dollars 
to be used during fiscal year 1980 by the Director to facilitate the 
implementation of formula funding under this part. The fund is to 
provide the means of adjusting particular local school entitlements 
which are allocated in error due to underprojections, data error, 
misclassification of students, and similar reporting errors, or to 
provide for the initial funding of new schools under the formula, which 
have been started after the spring ADM counts, without reducing 
allotments made for other schools. Balances in this set-aside fund shall 
be apportioned through the formula during the first week in April by the 
Director or at such earlier time as he or she deems that significant ADM 
reporting fluctuations have ceased.



Sec. 39.79  Prohibition.

    The formula implementation set-aside fund shall not be used as a 
discretionary fund by the Director for any purpose, and it shall be 
allocated solely through the Indian School Equalization Formula.

[[Page 188]]



                     Subpart G_School Board Training



Sec. 39.90  Establishment of a school board training fund.

    An amount shall be set aside annually for the purpose of providing 
training for school board members as authorized by Pub. L. 95-561, 
section 1129(d). Each school board shall receive a flat sum, initially 
for FY 1980 to be set at $5,000, with Alaska and off-reservation 
boarding schools to receive an additional 25 percent of this flat sum 
amount per annum.



Sec. 39.91  Other technical assistance and training.

    The provision of funds under Sec. 39.90 of this subpart does not 
relieve the Director of the responsibility for assuring that adequate 
technical assistance and training services are provided to school boards 
to the greatest extent possible. The provision of assistance under this 
subpart does not preclude a school board or its trial governing body 
from receiving financial or other assistance from the Bureau under the 
Indian Self-Determination and Education Assistance Act (88 Stat. 2203; 
Pub. L. 93-638; 25 U.S.C. 450 et seq.).



Sec. 39.92  Training activities.

    Training funds provided under this part may be used for training in 
the following subject areas:
    (a) Educational philosophy;
    (b) Community school programs;
    (c) Legal aspects of being a school board member;
    (d) School board operations and procedures;
    (e) Fiscal management;
    (f) Formula funding;
    (g) Personnel matters;
    (h) Union negotiations;
    (i) Contracting procedures and obligations;
    (j) Special curriculum areas;
    (k) Students' rights and responsibilities;
    (l) Education agency relations;
    (m) Alternative sources of Federal grants;
    (n) Juvenile justice;
    (o) Teachers training and inservice options;
    (p) Needs assessment, program development, proposal writing; and
    (q) Other training activities school boards deem appropriate and 
applicable to their situation and which are approved by the Director.



Sec. 39.93  Allowable expenditures.

    Allowable expenditures under this subpart are limited to:
    (a) Contracting with individuals and organizations for training 
services,
    (b) Membership fees in school boards' associations and purchase of 
their materials and publications,
    (c) Membership reimbursement for subsistence and travel expenses 
incurred while participating in training activities; and
    (d) Cooperative contracts with other school boards for joint 
training or technical assistance activities.



Sec. 39.94  Limitations on expenditures.

    (a) No expenditure may be authorized except in accordance with a 
decision of record by the school board and each payment shall be made 
under written authorization of the board chairperson.
    (b) Expenditures under this subpart may not be made for school board 
members' stipends or honorariums associated with participation in 
training activities. Payments for such may, however, come from the 
school's operational budget, if so designated and approved in the 
school's operational budget, if so designated and approved in the 
school's local educational finance plan. The maximum amounts of such 
payments shall be determined in accordance with the laws or regulations 
of the tribe involved and shall be subject to approval by the Director. 
In the absence of such tribal laws or regulations, such maximums shall 
be determined by the Director in consultation with the school board. 
Payments under this subpart may not be made to any employee of a school 
served by the school board being trained or assisted.



Sec. 39.95  Reporting of expenditures.

    An accounting of all expenditures of school board training funds 
shall be maintained as a supplement to each school's public accounting 
records.

[[Page 189]]



Sec. 39.96  Provision for annual adjustment.

    The allocation of $5,000 per school may be annually adjusted by the 
Director.



Sec. 39.97  Training for agency school board.

    Provisions for training agency school board members, except as they 
may also be members of local school boards, are not included in these 
local school board training funds. If required, such provision shall be 
incorporated in agency or area office educational administration 
training plans and budgets.



                    Subpart H_Student Transportation



Sec. 39.100  Definitions.

    As used in this subpart, the term:
    (a) Basic transportation miles means the daily average of all bus 
miles logged for round trip home-to-school transportation of day 
students.
    (b) Transported student means the average number of students 
transported to school on a daily basis.
    (c) School bus means a passenger vehicle, operated by an operator in 
the employ of, or under contract to, a Bureau operated or funded school, 
who is qualified to operate such a vehicle under State or Federal 
regulations governing the transportation of students; which vehicle is 
used to transport day students to and/or from home and the school.



Sec. 39.101  Purpose and scope.

    The purpose of this section is to provide funds to each school for 
the round trip transportation of students between home and the school 
site.



Sec. 39.102  Allocation of transportation funds.

    Transportation funds for FY 1980 shall be allocated to each school 
as follows:
    (a) Day students. Funds shall be allocated to each school which 
provides daily transportation of students between the student's 
residence and the school site by the following formula:
    (1) 180 x ($.85 per basic transportation mile + $.61 per transported 
student).
    (2) The allocation shall be based on the daily average of 
transported students and basic transportation miles computed during the 
October and November count periods.
    (3) This formula shall not apply to any dormitory which provides 
daily transportation between dormitory and the public school which the 
dormitory student attends.
    (b) Boarding school and dormitory students. Funds shall be allocated 
to each boarding school and dormitory for the transportation of resident 
students according to the following criteria:
    (1) For each student whose home is more than 1 mile and no more than 
100 miles from the boarding school or dormitory, the school shall 
receive $3.20 per mile per student per year. The miles per student shall 
be the shortest driving distance one way from the student's home to the 
school site. This provision applies only to those students for whom 
ground transportation is provided and for whom it is not necessary to 
provide air transportation.
    (2) For each student whose home is more than 100 and no more than 
350 miles from the boarding school or dormitory, the school shall 
receive $1.60 per mile per student per year. The miles per student shall 
be the shortest driving distance one way from the student's home to the 
school site. This provision applies only to those students for whom 
ground transportation is provided and for whom it is not necessary to 
provide air transportation.
    (3) For each student whose home is more than 350 miles from the 
boarding school or dormitory, the school shall receive $.48 per mile per 
student per year. The miles per student shall be the shortest driving 
distance one way from the student's home agency to the school site. This 
provision applies only to those students for whom ground transportation 
is provided and for whom it is not necessary to provide air 
transportation.
    (4) For each student whose home is more than 350 miles from the 
boarding school or dormitory and for whom it is necessary to provide 
airplane transportation, the school shall receive $.60 per mile per 
student flown per year. The miles per student shall be the actual one 
way air miles between the airport

[[Page 190]]

closest to the school site and the closest to the student's home. 
Airplane transportation shall be provided only when ground 
transportation is unavailable or not cost-effective.
    (5) For each student attending Mt. Edgecumbe Boarding School, Sitka, 
Alaska, who requires airplane transportation, the school shall receive 
$1.05 per mile per student flown per year. The miles per student shall 
be the one way air miles between the Sitka, Alaska airport and the 
airport nearest the student's home.
    (6) At least 80% of the funds received by the school under (3), (4), 
and (5) above must be used for student travel between home and school.



Sec. 39.103  Annual transportation formula adjustment.

    The Director will review transportation allotment factors each year 
and make changes in factors based on changes in transportation costs.



           Subpart I_Interim Maintenance and Minor Repair Fund



Sec. 39.110  Establishment and funding of an Interim Maintenance and 
Minor Repair Fund.

    There is established in the Division of Facilities Management a 
separate temporary fund entitled the Interim Maintenance and Minor 
Repair Fund. The Assistant Secretary shall cause the distribution of an 
amount of $1 million, under the FY 1980 Appropriation for the Bureau, 
from budget activity 3500, ``General Management and Facilities 
Operation'', to the direct use of schools, and shall create an 
appropriate account or subaccount for the Interim Maintenance and Minor 
Repair Fund and credit these funds thereto.



Sec. 39.111  Conditions for distribution.

    Funds from the Interim Maintenance and Minor Repair Fund shall be 
distributed to Bureau operated and funded schools and shall be 
separately earmarked in local school financial plans solely for 
expenditure at the discretion of the school supervisor for cost of 
school facility maintenance and minor repair. These funds shall be used 
to meet immediate minor repair and maintenance needs.



Sec. 39.112  Allocation.

    (a) Interim Maintenance and Minor Repair funds shall be allocated to 
all Bureau operated and contract schools based on the number of square 
feet of floor space used for that school's educational program, for 
student residence and for support facilities. Staff quarters shall be 
specifically excluded from the computation.
    (b) Square footage figures used in determining school allocations 
shall be taken from the facilities inventory maintained by the Division 
of Facilities Engineering.
    (c) In those cases, such as contract schools, where square footage 
figures are not now available, it shall be the responsibility of the 
Bureau's Division of Facilities Engineering to correct the information.
    (d) Schools in Alaska shall receive a 25% cost adjustment increase 
in the computation of their allocation.



Sec. 39.113  Use of funds.

    Funds allocated under this provision for maintenance and minor 
repair shall be used for no other purpose.



Sec. 39.114  Limitations.

    Nothing in this provision shall be interpreted as relieving the 
Bureau branch of Facilities Management or its field offices of any 
responsibility for continuing to provide maintenance and repair service 
to schools through existing procedures.



                  Subpart J_Administrative Cost Formula

    Source: 56 FR 35795, July 26, 1991, unless otherwise noted.



Sec. 39.120  Purpose and scope.

    The purpose of this subpart is to provide funds at the agency and 
area education offices for FY 1991 and future years for administration 
of all Bureau of Indian Affairs education functions, including but not 
limited to school operations, continuing education, early childhood 
education, post-secondary education and Johnson-O'Malley Programs.

[[Page 191]]



Sec. 39.121  Definitions.

    (a) Agency Education Office means a field office of the Office of 
Indian Education Programs providing administrative direction and 
supervision to one or more Bureau-operated schools as well as being 
responsible for all other education functions serving tribes within that 
agency's jurisdiction.
    (b) Area Education Office means a field office of the Office of 
Indian Education Programs responsible for all education functions 
serving tribes not serviced by an agency education office an in some 
cases providing administrative direction to one or more off-reservation 
boarding schools not under an agency education office.



Sec. 39.122  Allotment of education administrative funds.

    The total annual budget for agencies/areas shall be allotted to the 
Director and through him/her to agency and area education offices. This 
total budget shall be distributed to the various agency and area 
education offices as follows:
    (a) Each agency or area education office as defined above shall 
receive a base amount of $50,000 for basic administrative costs; and
    (b) Each agency or area education office as defined above shall 
receive an amount under these funds equal to two percent of the total 
higher education, Johnson-O'Malley and adult education funds 
administered by each office, except that the Navajo Agencies are 
restricted to a maximum of $50,000 for administering the Johnson-
O'Malley and higher education programs; and
    (c) Eighty percent of the remaining funds shall be distributed 
proportionately based on the number of schools operated under the 
jurisdiction of each agency or area education office, with Bureau-
operated schools counting as 1 and contract/grant schools counting as 
0.6; and
    (d) The remaining twenty percent shall be distributed 
proportionately based on the total weighted student units generated by 
all schools under the jurisdiction of each agency or area education 
office.



Sec. 39.123  Allotment exception for FY 1991.

    For FY 1991 only, the Director may reserve an amount equal to no 
more than one half of the funds received in FY 1990 by those offices to 
be closed in FY 1991 to cover severance pay costs, lump sum leave 
payments and relocation costs for those individuals affected by the 
closures. Any balance uncommitted by March 31, 1991, shall be 
distributed in accordance with the formula in Sec. 39.122.



                   Subpart K_Pre-kindergarten Programs



Sec. 39.130  Interim fiscal year 1980 and fiscal year 1981 funding for 
pre-kindergarten programs previously funded by the Bureau.

    Those schools having pre-kindergarten programs funded fully or in 
part from Bureau education funds in fiscal year 1979 shall be funded 
from Bureau education funds by the Director in fiscal year 1980 and 
fiscal year 1981 at their fiscal year 1979 Bureau education funding 
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for 
each Bureau funded school shall be deducted from the school's fiscal 
year 1979 Bureau Education Budget amount prior to application of the 
phase-in provision detailed in Sec. 39.19.



Sec. 39.131  Addition of pre-kindergarten as a weight factor to the 
Indian School Equalization Formula in fiscal year 1982.

    The Director, in consultation with the tribes and school boards, 
shall determine appropriate weight factors needed to include pre-
kindergarten programs in the Indian School Equalization Formula in 
fiscal year 1982. Based on a needs assessment, to be completed by 
January 1, 1980, pre-kindergarten programs shall be included in the 
Bureau's education request for fiscal year 1982.



        Subpart L_Contract School Operation and Maintenance Fund



Sec. 39.140  Definitions.

    Contract school operation and maintenance costs for fiscal year 1979 
means the sum of costs for custodial salaries

[[Page 192]]

and fringe benefits, related supplies and equipment and equipment 
repair, insurance, and school operation utilities costs, where such 
costs are not paid by the Division of Facilities Management or other 
noneducation Bureau sources.



Sec. 39.141  Establishment of an interim fiscal year 1980 operation and 
maintenance fund for contract schools.

    There is established in the Division of Facilities Management a 
separate fund entitled the Contract School Operation and Maintenance 
Fund. The Secretary shall cause the distribution of an amount of $2.5 
million, under the fiscal year 1980 appropriation for the Bureau, from 
budget activity 3500. ``General Management and Facilities Operations'', 
to the schools through this fund and shall create an appropriate account 
or subaccount for the Contract School Operation and Maintenance Fund.



Sec. 39.142  Distribution of funds.

    (a) Each contract school shall receive in fiscal year 1980 a portion 
of the Contract School Operation and Maintenance Fund determined by the 
percentage share which that school's fiscal year 1979 operation and 
maintenance cost represents in the total fiscal year 1979 operation and 
maintenance cost for all such schools.
    (b) To be eligible for these funds, a contract school shall submit a 
detailed report of actual operation and maintenance costs for fiscal 
year 1979 to the Director by November 23, 1979. These cost figures will 
be subject to verification by the Director to assure their accuracy 
prior to the allotment of any funds under this subpart.
    (c) Any funds generated under this subpart shall be included in the 
computation of the phase-in amount as set forth in Sec. 39.19 if 
supplemental operation and maintenance funds were included in a school's 
fiscal year 1979 3100 contract funds.



Sec. 39.143  Future consideration of contract school operation and 
maintenance funding.

    The Assistant Secretary shall arrange for full funding for operation 
and maintenance of contract schools by fiscal year 1981.



PART 40_ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR 
HIGHER EDUCATION--Table of Contents


Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.

    Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 40.1  Appropriations for loans or grants.

    Funds appropriated by Congress for the education of Indians may be 
used for making educational loans and grants to aid students of one-
fourth or more degree of Indian blood attending accredited institutions 
of higher education or other accredited schools offering vocational and 
technical training who reside within the exterior boundaries of Indian 
reservations under the jurisdiction of the Bureau of Indian Affairs or 
on trust or restricted lands under the jurisdiction of the Bureau of 
Indian Affairs. Such educational loans and grants may be made also to 
students of one-fourth or more degree of Indian blood who reside near 
the reservation when a denial of such loans or grants would have a 
direct effect upon Bureau programs within the reservation. After 
students meeting these eligibility requirements are taken care of, 
Indian students who do not meet the residency requirements but are 
otherwise eligible may be considered.

[33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 40.2  Working scholarships.

    Working scholarships may be granted to Indians who wish to earn 
their board and room by part-time work at Federal boarding schools that 
are located near a college, trade, or vocational school.

[[Page 193]]



Sec. 40.3  Applications.

    Applications for educational loans, grants, and working scholarships 
shall be submitted through the superintendent or officer in charge of 
the agency at which the applicant is enrolled in the manner prescribed 
by the Commissioner.



Sec. 40.4  Security.

    If a borrower or cosigner has security to offer for an educational 
loan it must be given in an amount adequate to protect the loan.



Sec. 40.5  Repayments.

    Repayment schedules for educational loans may provide not to exceed 
two years for repayment for each year in school.



PART 41_GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO 
COMMUNITY COLLEGE--Table of Contents



            Subpart A_Tribally Controlled Community Colleges

Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.

                   Subpart B_Navajo Community College

41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.

    Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25 
U.S.C. 640c-1(c).

    Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A_Tribally Controlled Community Colleges



Sec. 41.1  Purpose.

    The policy of the Department of the Interior is to support and 
encourage the establishment, operation, and improvement of tribally 
controlled community colleges to ensure continued and expanded 
educational opportunities for Indian students. The regulations in this 
subpart prescribe procedures for providing financial and technical 
assistance to this end under the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).



Sec. 41.2  Scope.

    The regulations in this subpart are applicable to the provision of 
financial and technical assistance to Community Colleges under title I 
of the Act. They do not apply to the provision of assistance to Navajo 
Community College. Subpart B of this part applies to assistance to 
Navajo Community College under title II of the Act.



Sec. 41.3  Definitions.

    As used in this subpart A:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which a community college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by a 
community college and approved by the Director of Education as the 
annual period for the operation of the college's education programs.
    (c) The Act means the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior, or his/her duly authorized 
representative.
    (e) Community College means an institution of higher education which 
(1) is formally controlled or operated and managed by the governing body 
of an Indian Tribe or by the governing bodies of two or more Indian 
Tribes, or (2) is established or is otherwise sanctioned or chartered by 
resolution, ordinance,

[[Page 194]]

or other official action (which is still in full force and effect) of 
such governing body or bodies. However, for purposes of this definition, 
only one such institution shall be recognized with respect to any one 
Tribe. A Community College that meets the requirements of this 
definition with respect to more than one Tribe must meet such 
requirements with respect to at least one Tribe that has no other 
currently formally controlled, operated and managed, established, 
sanctioned, or chartered Community College.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE, means the number of Indian students 
(1) enrolled full-time for an entire academic term at a community 
college, calculated on the basis of registrations as in effect at the 
conclusion of the sixth week of an academic term, plus (2) the full-time 
equivalent of the number of other Indian students who are enrolled part-
time for an entire academic term at a community college (determined on 
the basis of the quotient of the sum of credit hours for which all such 
part-time students are registered during such academic term, divided by 
twelve (12)), calculated on the basis of registrations as in effect at 
the conclusion of the sixth week of an academic term. The formula for 
calculating the Indian FTE for an academic term is expressed 
mathematically as FTE=FT+PTCR/12 where FT is the number of full time 
Indian students (those carrying 12 or more credit hours at the end of 
the sixth week of the academic term) and PTCR is the number of credit 
hours for which part-time Indian students are registered at the end of 
the sixth week of an academic term.
    (h) Indian means a person who is a member of an Indian Tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or regional or village corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Institution of higher education as defined in Pub. L. 95-471 
(incorporating in part 1201 of the Higher Education Act of 1965), means 
an educational institution in any State which
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate,
    (2) Provides an educational program for which it awards a bachelor's 
degree or provides not less than a two-year program which is acceptable 
for full credit toward such a degree,
    (3) Is a public or other nonprofit institution, and
    (4) Is accredited by a nationally recognized accrediting agency or 
association or, if not so accredited,
    (A) Is an institution with respect to which the Commissioner of 
Education has determined that there is satisfactory assurance, 
considering the resources available to the institution, the period of 
time, if any, during which it has operated, the effort it is making to 
meet accreditation standards and the purpose for which this 
determination is being made, that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time, or
    (B) Is an institution whose credits are accepted, on transfer, by 
not less than three institutions which are so accredited, for credit on 
the same basis as if transferred from an institution so accredited.

Such term also includes any school which provides not less than a one-
year program of training to prepare students for gainful employment in a 
recognized occupation and which meets the provisions of clauses (1), 
(2), (3), and (4). Such term also includes a public or nonprofit private 
educational institution in any State which, in lieu of the requirement 
in clause (1), admits as regular students persons who are beyond the age 
of compulsory school attendance in the State in which the institution is 
located and who have the

[[Page 195]]

ability to benefit from the training offered by the institution.
    (k) National Indian Organization means any organization of Indians, 
found by the Director of Education to be nationally based, representing 
a substantial Indian constituency, and expert in the field of Indian 
education. Notice of such findings shall be published in the Federal 
Register with an opportunity for comment from the public and no such 
finding shall be effective earlier than 30 days after publication.
    (l) Operating expenses of education programs means the obligations 
and expenditures of a community college for post-secondary activities, 
including administration, instruction, attendance, health and other 
student services, operation, maintenance and repair of plant, fixed 
charges, and other related expenses, but not including expenditures for 
the acquisition or construction of academic facilities. (The term 
academic facilities means structures suitable for use as classrooms, 
laboratories, libraries, and related facilities necessary or appropriate 
for instruction of students, or for research, or for administration of 
the educational or research programs of an institution of higher 
education or as dormitories or student services buildings, and 
maintenance, storage, support, or utility facilities essential to 
operation of the foregoing facilities.)
    (m) Part-time means registered for less than twelve (12) credit 
hours for an academic term; full-time means registered for twelve (12) 
or more credit hours for an academic term.
    (n) Unused portion of received funds means the amount of financial 
assistance provided under this subpart to a Community College for an 
academic year which has not been obligated or expended by the Community 
College by July 1 of that academic year.



Sec. 41.4  Eligible recipients.

    Financial assistance under this subpart shall be available only to a 
Community College which:
    (a) Is governed by a board of directors, regents, or trustees, a 
majority of whom are Indians;
    (b) Demonstrates its adherence to stated goals, a philosophy, or a 
plan of operation which is directed to meet the needs of Indians, and 
has formally adopted, in writing, such goals, philosophy, or plan of 
operation, which may be in the form of a constitution, by-laws, or 
policy statement of the Community College;
    (c) If in operation for more than one year, has students a majority 
of whom are Indian; and
    (d) Upon completion of a feasibility study, receives a positive 
determination, and;
    (e) Is not in violation of Sec. 41.11 of this subpart.



Sec. 41.5  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating expenses of education programs of Community Colleges. 
Financial assistance under this subpart shall not be used for religious 
worship or sectarian instruction, but nothing in this subpart shall be 
construed as barring instruction in comparative religions or cultures or 
in languages of Indian tribes.



Sec. 41.6  HHS participation.

    The Assistant Secretary for Indian Affairs is authorized to enter 
into an agreement with the Assistant Secretary for Education, Department 
of Health and Human Services, and to revise such agreement as necessary, 
to assist the Director of Education in the development of plans, 
procedures, and criteria for feasibility studies under this subpart, and 
to provide the Director with technical assistance in conducting such 
feasibility studies, including determinations as to the reasonable 
number of students required to support a Community College.

[44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 41.7  Feasibility studies.

    (a) Grants under Sec. 41.8 of this subpart may be made to a 
Community College only after a positive determination of feasibility as 
provided in this section.
    (b) Within thirty (30) days of receiving a resolution or other duly 
authorized request from the governing body of one or more Indian Tribes, 
the Director of Education shall initiate a feasibility

[[Page 196]]

study to determine whether there is justification to encourage and 
maintain a Community College for such tribe or tribes. The feasibility 
study shall give consideration to the following factors:
    (1) Financial feasibility based upon potential enrollment;
    (2) Evidence of low tribal levels of tribal matriculation in and 
graduation from postsecondary educational institutions;
    (3) Tribal, linguistics, or cultural differences;
    (4) Isolation;
    (5) Presence of alternate education sources;
    (6) Proposed curriculum;
    (7) The benefits of continued and expanded educational opportunities 
for Indian students.
    (c) The Director of Education will issue detailed guidelines for 
conducting and analyzing the feasibility studies.
    (d) Feasibility studies under this section shall be conducted in 
consultation with the tribal governing body or bodies involved or their 
designated representatives. Each feasibility study shall be completed 
and filed by the Director of Education within sixty (60) days after the 
feasibility study has been initiated. The study shall be filed with (1) 
the Assistant Secretary, (2) the tribal governing body or bodies 
requesting the studies, and (3) with the board of directors, regents, or 
trustees of the Community College, if already established.
    (e) In the case of any feasibility study which results in a negative 
determination by the Director of Education, a Tribe requesting the study 
may within thirty (30) days of receipt of the study or of notice of such 
determination file a notice of appeal with the Assistant Secretary. 
Following the timely filing of a Tribe's notice of appeal, the Tribe and 
Community College shall have a right to a formal review of the 
feasibility study, including a hearing upon reasonable notice within 
sixty (60) days before the Assistant Secretary (or his/her designee, 
other than the Director of Education or any federal employee under the 
Director's supervision). At the hearing, the appealing Tribe or the 
Community College (or both) may present additional evidence or arguments 
to justify feasibility. Within thirty (30) days of the hearing, the 
Assistant Secretary shall issue a written ruling either confirming, 
modifying, or reversing the original determination. The ruling, which 
shall be final for the Department, shall be mailed or otherwise 
delivered to the appealing Tribe and the Community College within one 
week of its issuance. In any case where the original negative 
determination is not reversed, the Assistant Secretary's ruling shall 
specify the grounds for the decision and state the manner in which the 
determination related to each of the factors specified.
    (f) A negative determination shall not prevent a Tribe from 
requesting another feasibility study, but no more than one feasibility 
study shall be requested for any given Community College per year.



Sec. 41.8  Grants.

    (a) Each Community College which has received a positive feasibility 
study determination under Sec. 41.7 of this subpart shall be entitled 
to apply for financial assistance under this subpart.
    (b) Except with respect to applications for grants for the 1979-1980 
academic year, each Community College shall make an application to the 
Director of Education before January 31, of the year preceding the 
academic year for which financial assistance is requested. Each 
application must contain the following information:
    (1) The name and address of the Community College and the names of 
the members of the governing board and the number of its members who are 
Indian;
    (2) A statement that the Community College has received a positive 
feasibility determination and the date thereof;
    (3) A written statement of the goals, philosophy, or proposed plan 
of operation sufficient to demonstrate that its education program or 
proposed program is designed to meet the needs of Indians;
    (4) In the case of a Community College which has been in operation 
for more than one year, a statement of the total number of FTE Indian 
students

[[Page 197]]

and the total number of all FTE students;
    (5) If the Community College has not yet begun operations, a 
statement of expected enrollment, including the total number of FTE 
students and the number of FTE Indian students;
    (6) The name and address of the Indian Tribe or Tribes which control 
or operate and manage, or have established, sanctioned, or chartered the 
Community College, and a statement as to which of those Tribes have not 
done so with respect to any other Community College;
    (7) A curriculum, which may be in the form of a college catalog or 
like publication;
    (8) A proposed budget, showing total expected operating expenses of 
education programs and expected revenues from all sources for the 
academic year to which the information applies;
    (9) An assurance that the Community College will not deny admission 
to any Indian student because that student is not a member of a specific 
tribe or because such student is a member of a specific tribe, and will 
comply with the requirements set forth in Sec. 41.11 of this subpart 
together with any request and justification for a specific waiver of any 
requirement of 25 CFR part 276 which the Community College believes to 
be inappropriate;
    (10) Certification by the chief executive officer of the Community 
College that the information on the application is complete and correct 
and that the application has been filed with the governing body or 
bodies of the Tribe or Tribes which control or have sanctioned or 
chartered it.
    (c)(1) Within thirty (30) days of receiving an application required 
under paragraph (b) of this section, the Director of Education shall 
review the application submitted by the Community College and any 
comments with respect thereto filed by the Tribe(s) or by any national 
Indian organization(s) whose assistance has been requested by the 
Community College, and make a grant award in an amount determined under 
paragraph (d) of this section to the Community College if the 
application qualifies the Community College to receive a grant.
    (2) In the case of any Community College whose application is not 
approved, the Director shall promptly send a notice of such action to 
the Community College. Such notice shall include a statement of the 
specific reasons for not approving the application and a statement 
advising the College of its right within thirty (30) days to amend or 
supplement the application on file to rectify the defect.
    (3) Final disapproval of a grant application by the Director after 
the thirty day period referred to in paragraph (c)(2) of this section, 
or a failure of the Director of Education to approve an application 
within thirty (30) days of its receipt may be appealed by a Community 
College in the same manner as provided in paragraphs (d) and (f) of 
Sec. 41.7.
    (4) A Grant award under an approved application shall be evidenced 
by a grant agreement, signed by the Director of Education, incorporating 
the application and the provisions required by Sec. 41.11.
    (d)(1) In fiscal year 1980, each Community College which qualifies 
for a grant will receive a grant for academic year 1979-80; thereafter 
each Community College which qualifies for a grant shall receive a grant 
for the academic year commencing after the date of approval of its 
application. Except as provided in paragraph (d)(3) of this section 
grants shall be in an amount equal to $4,000 multiplied by the number of 
FTE Indian students in attendance at such college during each academic 
term divided by the number of academic terms in the academic year, 
except that no such grant shall exceed the annual operating expenses of 
the education programs provided by the Community College. The 
mathematical formula for calculating the base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.120


[[Page 198]]



where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.3(g) of this 
subpart and N is the number of academic terms in the academic year.
    (2) For the first Federal fiscal year for which funds are 
appropriated for grants under this subpart, not less than eight (8) nor 
more than fifteen (15) grants shall be approved; priority in awarding 
such grants shall be given to Community Colleges which are operating on 
October 17, 1978, and which have a history of service to the Indian 
people. (If more than fifteen (15) Community Colleges meeting these two 
(2) conditions submit applications for the first fiscal year, a further 
priority for awarding grants among them shall be given to those who 
appear to be in the best position to fulfill the purpose of the Act and 
to those whose continued existence would be threatened if they did not 
receive such a grant).
    (3) All grants under this section shall be subject to the 
availability of appropriations and the amount thereof shall be ratably 
reduced for all Community Colleges if the sums appropriated for any 
fiscal year for financial assistance under this subpart are not 
sufficient to pay the full amounts to which the eligible Community 
Colleges are otherwise entitled under paragraph (d)(1) of this section.
    (e) The Director of Education shall authorize payments to each such 
Community College in advance installments by letter of credit or 
Treasury check in an amount equal to fifty percent (50%) of the grant 
amount available for allotment to such Community College for such 
academic year under paragraph (d) of this section on or before October 
1st of such College's academic year (except for 1979-80) or the first 
day on which appropriations for the fiscal year beginning on such date 
are available for obligation by BIA whichever occurs later, based on the 
number of FTE Indian students calculated on the basis of registrations 
as in effect at the conclusion of the sixth week of the final academic 
term of the preceding academic year. On or before January 1st (or such 
other date that is the first day of the fifth month) of such College's 
academic year, payments shall be made in the form of advance 
installments to each Community College in an amount equal to seventy-
five percent (75%) of the grant amount available for allotment to such 
Community College for such academic year under paragraph (d) of this 
section, calculated on the basis of registrations at the conclusion of 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of each such academic year the 
balance of the grant amount to which each College is entitled under 
paragraph (d) of this section shall be paid to such College. In the 
event that additional sums are appropriated to which such Community 
Colleges are entitled under section 110(a) of the Act and paragraph (d) 
of this section, these amounts shall be included in such final payments.
    (f) If with respect to any academic year the amounts of financial 
assistance hereunder have been ratably reduced as provided in paragraph 
(d)(3) of this section and additional funds have not been appropriated 
to pay the full amount of such reductions on or before June 1st of such 
year, the Director of Education shall notify each Community College of 
such fact in writing, and each Community College shall report in writing 
to the Director of Education on or before July 1st of such year the 
amount of unused portion of received funds. The total of such reported 
unused portions of received funds shall be reallocated by the Director 
of Education in proportion to the amount of financial assistance to 
which each Community College is entitled under paragraph (d) but which 
has not been provided due to the ratable reductions provided for 
therein, (except that no Community College shall receive more than the 
total annual cost of the education programs provided by such College) 
and payments shall be made reflecting such reallocations on or before 
August 1st of such academic year.
    (g) If the Director of Education determines that a Community College 
has received, through mistake or fraud, payments of financial assistance 
under this subpart to which it was not entitled, the Director shall 
promptly notify

[[Page 199]]

the college, which may appeal the Director's determination under the 
procedures set forth in Sec. 41.7, and adjust the amount of payments to 
the college under this subpart for the same or subsequent academic years 
to compensate for such overpayments or otherwise attempt to recover such 
overpayments.
    (h) Eligibility for grants under this subpart shall not, by itself, 
bar a Community College from qualifying for or receiving financial 
assistance under any other Federal program for which it may qualify.



Sec. 41.9  Reports.

    Each Community College receiving financial assistance under this 
subpart shall provide to the Director of Education on or before December 
1st of each year a report which shall include an accounting of the 
amounts and purposes for which such financial assistance was expended 
during the preceding academic year; the annual cost of education 
programs of the Community College from all sources for such academic 
year; and a final report of the performance based upon the criteria set 
forth in the Community College's stated goals, philosophy or plan of 
operation. Upon reasonable cause, the Director of Education may extend 
the period for submitting the annual report. Each Community College 
shall in addition report to the Director of Education its FTE Indian 
student enrollment for each academic term of the academic year within 
three weeks of the date such FTE calculation is made.



Sec. 41.10  Technical assistance.

    The Director of Education shall furnish technical assistance either 
directly or through contract to any Community College requesting it. 
Such assistance shall be initiated within thirty (30) days of a 
Community College's request in writing. In any case, where the type and 
source of technical assistance is specified in the request, the 
Director, to the extent possible or feasible, shall provide the type of 
technical assistance through the source so specified. Technical 
assistance may include, but is not limited to, consulting services for 
the development of programs, plans, and feasibility studies and 
accounting, and other technical advice. In awarding of contracts for 
technical assistance, preference shall be given to an organization 
designated by the Community College to be assisted. Denials of requests 
for technical assistance under this section shall be made in writing and 
sent to the applicant within thirty (30) days of the request, together 
with a statement of the reason for denial. An appeal under this section 
may be undertaken in the same manner as in the case of negative 
determinations of feasibility under Sec. 41.7 of his subpart.



Sec. 41.11  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to Community 
Colleges:
    (a) Services or assistance provided to Indians by Community Colleges 
aided under this subpart shall be provided in a fair and uniform manner, 
and admission to any such Community College shall not be denied to any 
Indian student because such individual is not a member of a specific 
Indian tribe or because such individual is a member of a specific Indian 
tribe.
    (b) Except as may be otherwise provided in this subpart, any 
Community College receiving financial assistance under this subpart 
shall comply with part 276 of this title, subject to any express waiver 
of specific inappropriate provisions of part 276 that may be granted by 
the Assistant Secretary after request and justification by the Community 
College.
    (c) A Community College shall have the right to appeal any adverse 
decision of the Director of Education under a grant agreement to the 
Assistant Secretary by filing written notice of appeal with the 
Assistant Secretary within thirty (30) days after the adverse decision. 
Within thirty (30) days after receiving notice of appeal, the Assistant 
Secretary shall conduct a formal hearing at which time the College may 
present evidence and argument to support its appeal. Within thirty (30) 
days of the hearing, the Assistant Secretary shall issue a written 
ruling on the appeal confirming, modifying, or reversing the Director of 
Education's decision, the Assistant Secretary shall

[[Page 200]]

state in detail the basis for his/her ruling. The ruling of the 
Assistant Secretary on an appeal shall be final for the Department of 
the Interior.



Sec. 41.12  Annual budget.

    Appropriations under title I of the Tribally Controlled Community 
College Assistance Act of 1978 shall be separately identified in the 
Bureau of Indian Affairs Budget Justification. Funds appropriated for 
grants under this subpart shall not be commingled with other funds 
expended by the Bureau of Indian Affairs.



Sec. 41.13  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of Federal financial assistance or 
any other payment of Federal funds is based, may be subject to criminal 
prosecution under provisions such as sections 287, 371, or 1001 of title 
18, U.S. Code.



                   Subpart B_Navajo Community College



Sec. 41.20  Policy.

    It is the policy of this Department to support and encourage the 
establishment, operation, and improvement of tribally controlled 
community colleges in order to ensure continued and expanded educational 
opportunities for Indian students. The regulations in this subpart 
prescribe procedures for providing financial and technical assistance to 
this end for the Navajo Community College under the Navajo Community 
College Act, as amended (25 U.S.C. 640a-c).



Sec. 41.21  Scope.

    The regulations in this subpart are applicable to the provision of 
financial and technical assistance to Navajo Community College pursuant 
to the Navajo Community College Act of December 15, 1971 (Pub. L. 92-
189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo Community 
College Assistance Act of 1978, title II of the Tribally Controlled 
Community College Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 
1329, 25 U.S.C. 640c). Regulations applicable to Tribally Controlled 
Community Colleges other than Navajo Community College are found in 
subpart A of this part 41.



Sec. 41.22  Definitions.

    As used in this subpart:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which the college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by the 
college and approved by the Director of Education as the annual period 
for the operation of the college's education programs.
    (c) The Act means the Navajo Community College Act of December 15, 
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community 
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat. 
1329, 25 U.S.C. 640a et seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior or his/her duly authorized 
representative.
    (e) College means the institution known as Navajo Community College 
established by the Navajo Tribe.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE means the number of Indian students 
(1) enrolled full-time for an entire academic term at the College, 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term, plus (2) the full-time equivalent 
of the number of other Indian students who are enrolled part-time for an 
entire academic term at the College (determined on the basis of the 
quotient of the sum of credit hours for which all such part-time 
students are registered during such academic term divided by (12)), 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term. The formula for calculating the 
Indian FTE for an academic term is expressed mathematically as

[[Page 201]]

FTE=FT+PTCR/12 where FT is the number of full time Indian students 
(those carrying 12 or more credit hours at the end of the sixth week of 
the academic term) and PTCR is the number of credit hours for which 
part-time Indian students are registered at the end of the sixth week of 
an academic term.
    (h) Indian means a person who is a member of an Indian tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or Regional or Village Corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Operating and Maintenance Expenses of Education Programs means 
the obligation and expenditures by the College for post-secondary 
education activities including administration, instruction, attendance, 
health and other student services, operation, maintenance and repair of 
plant, and fixed charges, and other related expenses, but not including 
obligations or expenditures for the acquisition or construction of 
academic facilities (as defined in Sec. 41.3(l) of subpart A).



Sec. 41.23  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating and maintenance expenses of education programs of the 
College. Financial assistance under this subpart shall not be used for 
religious worship or sectarian instruction, but nothing in this subpart 
shall be construed as barring instruction in comparative religions or 
cultures or in languages of Indian tribes.



Sec. 41.24  Grants.

    (a) Navajo Community College is entitled to annual grants for 
operation and maintenance of the College in amounts based upon the 
number of Full-Time Equivalent Indian students in attendance.
    (b) Annually, in the manner and within the deadline established by 
the Director of Education, the Navajo Community College shall submit an 
application in the form of a statement of its FTE enrollment (total and 
Indian) for the next academic year. The statement shall include a 
description of the College's curriculum, which may be in the form of a 
College catalog or like publication, and a proposed budget showing total 
expected operating expenses of educational programs and expected revenue 
from all sources for the academic year for which the information 
applies. The statement shall be certified by the chief executive officer 
of the College and shall certify that a copy of that statement has been 
submitted to the Navajo Tribe.
    (c) Annual budget request for the College shall be sparately 
identified in the Bureau of Indian Affairs Budget Justifications. Funds 
appropriated for grants under this subpart shall not be commingled with 
other funds appropriations historically expended by the Bureau of Indian 
Affairs for programs and projects normally provided on the Navajo 
Reservation for Navajo beneficiaries.
    (d) Within thirty (30) days of submission of the statement required 
under paragraph (b) of this section, the Director of Education shall 
make a grant award to the College in an amount determined under 
paragraph (e) of this section. The grant award shall be evidenced by a 
grant agreement signed by the Director of Education, incorporating the 
grant application and including the provisions required by Sec. 41.27 
of this subpart.
    (e) The College shall be eligible to receive a grant for the fiscal 
year beginning October 1, 1979, and for each succeeding year, in an 
amount equal to $4,000 multiplied by the number of FTE Indian students 
in attendance at the College during each academic term divided by the 
number of academic terms in the academic year, except that no such grant 
shall exceed the annual operating expenses of the education programs 
provided by the College. The mathematical formula for calculating the 
base grant is BG (Base Grant)=

[[Page 202]]

[GRAPHIC] [TIFF OMITTED] TC14NO91.121


where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.22(g) of this 
subpart and N is the number of academic terms in the academic year. The 
amount and payment of such grants shall be subject to the availability 
of annual appropriations.
    (f) The Director of Education shall authorize payments to the 
College in advance installments by letter of credit or Treasury check in 
an amount equal to fifty percent (50%) of the grant amount available for 
allotment to the College for such academic year under paragraph (e) of 
this section on or before October 1st of such academic year (except 
1979-80) or the first day on which appropriations for the fiscal year 
beginning on such date are available for obligation by BIA, whichever 
occurs later, based on the number of FTE Indian students calculated on 
the basis of registrations as in effect at the conclusion of the sixth 
week of the final academic term of the preceding year. On or before 
January 1st (or such other date that is the first day of the fifth 
month) of such academic year, payment shall be made in the form of such 
advance installments to the College in an amount equal to seventy-five 
percent (75%) of the grant amount available for allotment to the College 
for such academic year under paragraph (e) of this section, calculated 
on the basis of registrations as in effect at the conclusion of the 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of such academic year, the balance 
of the grant amount to which the College is entitled under paragraph (e) 
of this section shall be paid to the College. In the event that 
additional sums are appropriated for the benefit of the College, these 
sums shall be included in the final payment.
    (g) Overpayments of grants under this subpart may be recovered in 
the manner provided by Sec. 41.8(g) of subpart A.
    (h) Payments to the Navajo Community College under this subpart 
shall not disqualify the College from applying for or receiving grants 
or contracts under any other Federal programs for which it may qualify.



Sec. 41.25  Reports.

    The Navajo Community College shall provide the Director of Education 
on or before September 1st of each year a report which shall include an 
accounting of the amounts and purposes for which financial assistance 
under this subpart was expended during the preceding academic year, the 
annual cost of the education programs of the College from all sources 
for such academic year, and a final report of the performance based upon 
the criteria set forth in the College's stated goals, philosophy or plan 
of operation. Upon reasonable cause, the Director of Education may 
extend the period for submitting the annual report. The college shall in 
addition report to the Director of Education its FTE Indian Student 
enrollment for each academic term of the academic year within three 
weeks of the date such FTE calculation is made.



Sec. 41.26  Technical assistance.

    The Director of Education shall furnish technical assistance, either 
directly or through contract, to the College when requested in writing. 
Such assistance shall be initiated within thirty (30) days of the 
College's request. In any case in which the form and source of technical 
assistance is specified in the request, the Director of Education shall 
to the extent possible or feasible provide technical assistance in the 
form requested and through the source so specified. Technical assistance 
may include, but is not limited to, consulting services in the 
development of annual statements and reports required under this subpart 
and accounting, and other technical advice and assistance.

[[Page 203]]



Sec. 41.27  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to the Navajo 
Community College.
    (a) Services or assistance provided to Indians by the College with 
the financial assistance provided under this subpart shall be provided 
in a fair and uniform manner, and admission to the College shall not be 
denied any Indian student because such individual is not a member of a 
specific Indian tribe or because such individual is a member of a 
specific Indian tribe.
    (b) Except as may be otherwise provided in this subpart, the College 
shall comply with part 276 of this title, subject to express waiver of 
specific inappropriate provisions of part 276 that may be granted, after 
request and justification by the College by the Assistant Secretary.
    (c) In addition to any other right the college may have under this 
subpart, the College shall have the right to appeal any adverse decision 
of the Director of Education under a grant agreement to the Assistant 
Secretary by filing written notice of appeal with the Assistant 
Secretary within thirty (30) days of the adverse decision. Within thirty 
(30) days after receiving notice of appeal, the Assistant Secretary 
shall conduct a formal hearing at which time the College may present 
evidence and argument to support its appeal. Within thirty (30) days of 
the hearing, the Assistant Secretary shall issue a written ruling on the 
appeal confirming, modifying or reversing the decision of the Director 
of Education. In the case of a ruling not reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.28  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of the Federal financial assistance, 
or any other payment of Federal funds, is based, may be subject to 
criminal prosecution under provisions such as sections 287, 371, or 1001 
of title 18, U.S. Code.



PART 42_STUDENT RIGHTS AND DUE PROCESS PROCEDURES--Table of Contents




Sec.
42.1 Purpose.
42.2 Application to Bureau schools.
42.3 Rights of the individual student.
42.4 Due process.
42.5 Application to schools under Bureau contract.

    Authority: 5 U.S.C. 301.

    Source: 39 FR 32741, Sept. 11, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 42.1  Purpose.

    The regulations in this part govern establishing programs of student 
rights and due process procedures in Bureau of Indian Affairs schools 
and in schools that are operating under contract with the Bureau of 
Indian Affairs.



Sec. 42.2  Application to Bureau schools.

    All Bureau of Indian Affairs schools shall be governed by the 
regulations set forth in this part and said regulations shall be 
expressly included as a part of the local school regulations of each 
Bureau of Indian Affairs school. Upon admission, all students of Bureau 
of Indian Affairs schools shall be given a copy of the school 
regulations governing the conduct of students and shall be notified of 
any amendments thereto.



Sec. 42.3  Rights of the individual student.

    Individual students at Bureau of Indian Affairs schools have, and 
shall be accorded, the following rights:
    (a) The right to an education.
    (b) The right to be free from unreasonable search and seizure of 
their person and property, to a reasonable degree of privacy, and to a 
safe and secure environment.
    (c) The right to make his or her own decisions where applicable.
    (d) The right to freedom of religion and culture.
    (e) The right to freedom of speech and expression, including 
symbolic expression, such as display of buttons, posters, choice of 
dress, and length of

[[Page 204]]

hair, so long as the symbolic expression does not unreasonably and in 
fact disrupt the educational process or endanger the health and safety 
of the student or others.
    (f) The right to freedom of the press, except where material in 
student publications is libelous, slanderous, or obscene.
    (g) The right to peaceably assemble and to petition the redress of 
grievances.
    (h) The right to freedom from discrimination.
    (i) The right to due process. Every student is entitled to due 
process in every instance of disciplinary action for alleged violation 
of school regulations for which the student may be subjected to 
penalties of suspension, expulsion, or transfer.



Sec. 42.4  Due process.

    Due process shall include:
    (a) Written notice of charges within a reasonable time prior to a 
hearing. Notice of the charges shall include reference to the regulation 
allegedly violated, the facts alleged to constitute the violation, and 
notice of access to all statements of persons relating to the charge and 
to those parts of the student's school record which will be considered 
in rendering a disciplinary decision.
    (b) A fair and impartial hearing prior to the imposition of 
disciplinary action absent the actual existence of an emergency 
situation seriously and immediately endangering the health or safety of 
the student or others. In an emergency situation the official may impose 
disciplinary action not to exceed a temporary suspension, but shall 
immediately thereafter report in writing the facts (not conclusions) 
giving rise to the emergency and shall afford the student a hearing 
which fully comports with due process, as set forth herein, as soon as 
practicable thereafter.
    (c) The right to have present at the hearing the student's parent(s) 
or guardian(s) (or their designee) and to be represented by lay or legal 
counsel of the student's choice. Private attorney's fees are to be borne 
by the student.
    (d) The right to produce, and have produced, witnesses on the 
student's behalf and to confront and examine all witnesses.
    (e) The right to a record of hearings of disciplinary actions, 
including written findings of fact and conclusions in all cases of 
disciplinary action.
    (f) The right to administrative review and appeal.
    (g) The student shall not be compelled to testify against himself.
    (h) The right to have allegations of misconduct and information 
pertaining thereto expunged from the student's school record in the 
event the student is found not guilty of the charges.



Sec. 42.5  Application to schools under Bureau contract.

    Non-Bureau of Indian Affairs schools which are funded under contract 
with the Bureau of Indian Affairs must also recognize these student 
rights.



PART 43_MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS
--Table of Contents




Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.

    Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

    Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

[[Page 205]]



Sec. 43.1  Purpose and scope.

    This part contains the regulations of the Bureau of Indian Affairs, 
U.S. Department of the Interior, governing the maintenance, control, and 
accessibility of student records. This part will apply to all 
educational institutions under the jurisdiction of the Bureau of Indian 
Affairs, whether operated under contract or otherwise.



Sec. 43.2  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    (b) Educational institution means any institution operated under the 
jurisdiction of the Bureau of Indian Affairs either directly or by 
contract, including, but not limited to, schools or dormitories from 
which Indian students attend public schools.
    (c) Eligible student means a student who has become 18 years of age 
or is attending an institution of post-secondary education. When a 
student becomes an eligible student, the permission required of and the 
rights given to the parents of the student shall thereafter only be 
required of and given to the student.
    (d) Parent means a natural parent, an adoptive parent, the legal 
guardian, or a legal custodian of a student. (Where the natural parents 
are unavailable, a required written parental consent may be obtained 
from the person who has assumed custody of the student.) For purposes of 
the Education of All Handicapped Children Act, the term parent also 
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
    (e) Student records means those records, files, documents, and other 
materials which contain information directly related to a student and 
which are maintained by an educational institution, or by a person 
acting for that institution. The term does not include:
    (1) Records of any educational personnel which are in the sole 
possession of the maker and which are not accessible or revealed to any 
other person except a substitute.
    (2) Records made and maintained in the normal course of business 
which relate exclusively to persons who are employed in an educational 
institution but do not attend that institution.
    (3) Directory information as given in Sec. 43.20.
    (4) Records on a student who is 18 years of age or older, or is 
attending an institution of post-secondary education, which are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in his professional 
or paraprofessional capacity, or assisting in that capacity, and which 
are made, maintained, or used only in connection with the provision of 
treatment to the student, and are not available to anyone other than 
persons providing such treatment, except that such records can be 
personally reviewed by a physician or other appropriate professional of 
the student's choice.



Sec. 43.3  Student rights.

    The regulations in this part do not prevent educational institutions 
from giving noneligible students rights similar to those given to 
parents and eligible students. Educational institutions may do so at 
their discretion.



Sec. 43.4  Annual notification of rights.

    (a) Each educational institution to which this part applies and 
which maintains records on students shall inform parents or eligible 
students of the rights given them by this part.
    (b) In meeting the requirement in paragraph (a) of this section the 
educational institution shall give notice to parents and eligible 
students at least annually of the following:
    (1) The types of education records and information contained in them 
which are directly related to students and maintained by the 
institution.
    (2) The name and position of the official responsible for 
maintaining each type of record, the persons who have access to those 
records, and the purpose for which they have access.
    (3) The policies of the institution for reviewing and expunging 
those records.
    (4) The procedures established by the institution under Sec. 43.5.
    (5) The procedures for challenging the content of education records 
including those in Sec. 43.10.

[[Page 206]]

    (6) The cost, if any, which will be charged to the parent or 
eligible student for reproducing copies of records under Sec. 43.5.
    (7) The categories of information which the institution has 
designated as ``directory information'' under Sec. 43.20.
    (c) The notice given to a parent or eligible student under this 
section shall be in a language considered by the institution to be 
understandable by the parent or eligible student.



Sec. 43.5  Access to records.

    Educational institutions shall give parents of students or eligible 
students, who are or have been in attendance at the institutions, access 
to student records, except as stated in Sec. 43.6.



Sec. 43.6  Limitations on access.

    Educational institutions are not required to make available to 
students the following materials:
    (a) Financial records of the parents of the student or any 
information contained in those records.
    (b) Confidential letters and statements of recommendations, which 
were placed in any student's record prior to January 1, 1975, and which 
are not used for purposes other than those for which they were 
specifically intended.
    (c) Those records listed in Sec. 43.2(e) which are exempt from the 
definition of student records.



Sec. 43.7  Access rights.

    The right of access specified in Sec. 43.5 shall include:
    (a) The right to obtain a list of the types of student records which 
are maintained by the institution.
    (b) The right to inspect and review the content of those records.
    (c) The right to obtain copies of those records, the cost, if any, 
not to exceed the actual cost to the educational institution of 
reproducing the copies.
    (d) The right to a response from the institution to reasonable 
requests for explanations and interpretations of those records.
    (e) The right to an opportunity for a hearing to challenge the 
content of records.
    (f) If any material or document in the record of a student includes 
information on more than one student, the right to inspect and review 
only that portion of such material or document as relates to that 
particular student or to be informed of the specific information 
contained in such part of such materials.



Sec. 43.8  Destruction of records.

    This part does not prevent educational institutions from destroying 
any records, if not otherwise prevented by law. However, access shall be 
granted under Sec. 43.5 before destroying student records where the 
parent or eligible student has requested access. Only rec ords which are 
no longer relevant or necessary may be destroyed, subject to Sec. 
43.23(c).



Sec. 43.9  Procedures for granting access.

    Each educational institution shall establish appropriate procedures 
for granting a request by parents for access to the records of their 
children, or by eligible students for access to their own records within 
a reasonable period of time. In no case shall access be withheld more 
than forty-five (45) days after the request has been made.



Sec. 43.10  Right to challenge.

    Each educational institution shall give parents of students and 
eligible students, who are or have been in attendance at the 
institution, an opportunity to challenge the content of the student's 
records to:
    (a) Insure that the records are not inaccurate, misleading, or 
otherwise violating the privacy or other rights of students.
    (b) Provide an opportunity for correcting or deleting any 
inaccurate, misleading, or otherwise inappropriate data in the record.
    (c) Insert into such records a written comment by the parents or 
eligible students pertaining to the content of such records.



Sec. 43.11  Informal proceedings.

    Educational institutions may attempt to resolve differences with the 
parent of a student or the eligible student regarding the content of the 
student's records through informal meetings and discussions with the 
parent or eligible student.

[[Page 207]]



Sec. 43.12  Right to a hearing.

    Upon the request of the educational institution, the parent, or 
eligible student, a hearing shall be conducted under the procedures 
adopted and published by the institution. Such procedures shall include 
at least the following elements:
    (a) The hearing shall be conducted and decided within a reasonable 
period of time following the request for the hearing.
    (b) The hearing shall be informal and a verbatim record of 
proceedings will not be required. Interpreters will be utilized when 
necessary.
    (c) The hearing shall be conducted by an institutional official or 
other party who does not have a direct interest in the outcome of the 
hearing.
    (d) The parents or eligible student shall be given a full and fair 
opportunity to present evidence relevant to the issues raised under 
Sec. 43.10.
    (e) Within a reasonable period of time after the hearing ends, the 
hearing official shall make his recommendation in writing to the head of 
the educational institution. Within 20 days after receipt of the 
recommendation, the head of the institution shall issue his decision in 
writing to the parent or eligible student.



Sec. 43.13  Right of appeal.

    If any parent or eligible student is adversely affected by the 
decision of the head of the institution, that party shall have appeal 
rights as given in 25 CFR part 2. However, each official decision shall 
be issued within 30 days from receipt of the appeal.



Sec. 43.14  Consent.

    Educational institutions shall not permit access to or the release 
of student records or personally identifiable information contained in 
them, other than directory information of students, without the written 
consent of the parents or of an eligible student, to any party other 
than the following:
    (a) Local school officials, including teachers within the 
educational institution, who have been determined by the institution to 
have legitimate educational interests in the records.
    (b) Officials of other schools or school systems at which a student 
is interested in enrolling. The student or parent must be notified of 
such release except in cases involving Bureau of Indian Affairs schools. 
All Bureau of Indian Affairs schools are considered to be components of 
one school system whether operated under contract or otherwise.
    (c) Persons having official involvement with a student's application 
for or grant of financial aid.
    (d) Parents of a dependent student as defined in section 152 of the 
Internal Revenue Code of 1954, as amended.
    (e) Accreditation agencies in order to carry out their accrediting 
functions.
    (f) U.S. Office of Education officials and other governmental 
education officials when deemed necessary by the institution to carry 
out their official functions.
    (g) An education testing center or similar institution as a part of 
its validation research which has been authorized by the school.
    (h) In an emergency, any person to whom the information is necessary 
in the discretion of the school's administration in order to protect the 
student's health and safety, subject to Sec. 43.17.
    (i) Indian groups, contractors, grantees, professional social 
service organizations and personnel performing professional services, 
when necessary to carry out an official function authorized by the 
Bureau of Indian Affairs.
    (j) Pursuant to the order of a court of competent jurisdiction; 
however, the parent or eligible student must be notified of such order 
in advance of compliance therewith by the educational institution.



Sec. 43.15  Content of consent.

    The consent of a parent or eligible student requested under this 
part for the release of student records shall be in writing, signed and 
dated by the person giving the consent. The consent shall include:
    (a) A specification of the records to be released.
    (b) The reasons for release.
    (c) The names of the parties to whom the records will be released.

[[Page 208]]



Sec. 43.16  Copy to be provided to parents or eligible students.

    Where the consent of a parent or eligible student is required under 
this part for the release of student records, a copy of the records to 
be released shall be provided on request to:
    (a) The student's parents or the eligible student.
    (b) The student who is not an eligible student, if desired by the 
parents.



Sec. 43.17  Release of information for health or safety emergencies.

    (a) Educational institutions may release information from student 
records to appropriate persons in an emergency if the information is 
necessary to protect the health or safety of a student or other person. 
The factors to be used in determining whether records may be released 
under this section include the following:
    (1) The seriousness of the threat to the health or safety of the 
student or other persons.
    (2) The need for those records to meet the emergency.
    (3) Whether the persons to whom the records are released are in a 
position to deal with the emergency.
    (4) The extent to which time is of the essence in dealing with the 
emergency.



Sec. 43.18  Record of access.

    (a) Each educational institution shall maintain a record kept with 
the student records of each student, which will indicate all parties 
other than those specified in Sec. 43.14 which have requested or 
obtained access to those records and which will indicate specifically 
the legitimate interest that each party had in obtaining this 
information.
    (b) A record of access shall be available only to:
    (1) Parents or eligible students.
    (2) The school official and his or her assistants who are 
responsible for the custody of such records.
    (3) Persons or organizations authorized in and under the conditions 
of Sec. 43.14.



Sec. 43.19  Transfer of information by third parties.

    (a) Educational institutions shall not release personal information 
on a student except on the condition that the party to which the 
information is being transferred will not permit any other party to have 
access to the information without the written consent of the parents or 
of the eligible students.
    (b) With any information released to a party under paragraph (a) of 
this section, educational institutions shall include a written statement 
which informs the party of the requirement in paragraph (a) of this 
section.



Sec. 43.20  Directory information.

    (a) Any educational institution making public directory information 
shall make a reasonable effort to individually notify the parent or 
eligible student of the categories of information which it has 
designated as directory information. The institution shall allow a 
reasonable period of time after notice has been given for a parent or 
eligible student to inform the institution that any or all of the 
information designated should not be released without the prior consent 
of the parent or eligible student.
    (b) Directory information may include the following: A student's 
name, address, telephone listing, date and place of birth, major field 
of study, participation in officially recognized activities and sports, 
weight and height of members of athletic teams, dates of attendance, 
degrees and awards received, and the most recent previous educational 
agency or institution attended by the student, tribe, agency, area, name 
of parent, sex, and classification (grade). No other information may be 
included. Educational institutions have the right to limit the content 
of directory information.



Sec. 43.21  Standards for collection and maintenance of student records.

    (a) Records shall contain only information about an individual which 
is relevant and necessary to accomplish a purpose of the Bureau required 
to be accomplished by statute or Executive order of the President.
    (b) Student records which are used in making any determination about 
any student shall be maintained with such accuracy, relevance, 
timeliness, and

[[Page 209]]

completeness as is reasonably necessary to assure fairness to the 
student in making the determination.
    (c) Information which may be used in determining a student's rights, 
benefits, and privileges under Federal programs shall be collected 
directly from the student or his parents, to the greatest extent 
practicable. In deciding whether collection of information from a parent 
or eligible student, as opposed to a third-party source is practicable, 
the following factors among others may be considered:
    (1) Whether the nature of the information sought is such that it can 
only be obtained from a third party.
    (2) Whether the cost of collecting the information from the parent 
or student is unreasonable, when compared with the cost of collecting it 
from a third party.
    (3) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
student concerned.
    (4) Whether the information, if supplied by the parent or student, 
would have to be verified by a third party.
    (5) Whether provisions can be made for verification by the parent of 
student of information collected from third parties.
    (d) Each individual parent or eligible student who is asked to 
supply information about himself which will be added to a system of 
student records shall be notified of the basis for requesting the 
information, how it may be used, and what the consequences, if any, are 
of not supplying the information. At a minimum, the notice to the parent 
or eligible student must state:
    (1) The authority (whether granted by statute or Executive Order of 
the President) which authorizes requesting the information and whether 
disclosure of such information is mandatory or voluntary.
    (2) The principle purpose or purposes for which the information is 
intended to be used.
    (3) The routine uses which may be made of the information.
    (4) The effects, if any, of not providing all or any part of the 
requested information.
    (e) When information is collected on a standard form, the notice to 
the parent or eligible student shall be on the form or on a tear-off 
sheet attached to the form or on a separate sheet, whichever, is most 
practical.
    (f) When information is collected by an interviewer, the interviewer 
shall provide the parent or eligible student with a written notice which 
the individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (g) A parent or eligible student may be asked to acknowledge, in 
writing, that he has been given the notice required by this section.
    (h) No student records may be maintained describing how any 
individual exercises rights guaranteed by the first amendment to the 
Constitution unless:
    (1) Expressly authorized by statute or by the individual about whom 
the student record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 43.22  Assuring integrity of records.

    (a) Student records shall be maintained with appropriate 
administrative, technical and physical safeguards to insure the security 
and confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarrassment, inconvenience, or unfairness to any 
individual on whom information is maintained.
    (b) When maintained in manual form, student records shall be 
maintained, at a minimum, subject to the following safeguards, or 
safeguards giving comparable protection:
    (1) Areas in which the student rec ords are maintained or regularly 
used shall be posted with an appropriate warning, stating that access to 
the records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 43.23 and state that employees may 
be subject to a criminal penalty for the unauthorized disclosure of 
student records.

[[Page 210]]

    (2) During working hours, the area in which the student records are 
maintained or regularly used shall be occupied by authorized personnel, 
or access to the student records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During nonworking hours, access to the student records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (4) Where a locked room is the method of security provided for a 
system, the educational institution responsible for the system shall, no 
later than December 31, 1978, supplement that security by:
    (i) Providing lockable file cabinets or containers for the student 
records, or
    (ii) Changing the lock or locks for the room so that they may not be 
opened with a master key. For the purpose of this paragraph, a master is 
a key which may be used to open rooms other than the room containing 
student records, unless those rooms are used by officials or employees 
authorized to have access to the student records.
    (c) When maintained in computerized form, student records shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards' booklet, ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements to it, which are adequate and appropriate to 
assure the integrity of records in the system.
    (d) The education institution responsible for a system of student 
records shall be responsible for assuring that specific procedures are 
developed to assure that the student records in the system for which it 
is responsible are maintained with security meeting the regulations in 
this section. These procedures shall be in writing and shall be posted 
or otherwise periodically brought to the attention of employees working 
with the student records contained in the system.



Sec. 43.23  Conduct of employees.

    (a) Employees whose duties require handling of student records 
shall, at all times, take care to protect the integrity, security, and 
confidentiality of these records.
    (b) No employee of the educational institution may disclose student 
records unless disclosure is permitted under Sec. 43.14 or made to the 
parent of the student or eligible student to whom the record pertains.
    (c) No employee of the educational institution may alter or destroy 
a student record, unless:
    (1) Alteration or destruction is properly undertaken in the course 
of the employee's regular duties, or
    (2) Alteration or destruction is required by an authorized 
administrative decision or the decision of a court of competent 
jurisdiction.
    (d) The educational institution responsible for a system of student 
rec ords shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section.



PART 46_ADULT EDUCATION PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
46.1 Purpose and scope.
46.2 Definitions.
46.3 Information collection.
46.10 Eligible activities.
46.20 Program requirements.
46.30 Records and reporting requirements.

Subpart B [Reserved]

    Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.

    Source: 62 FR 44081, Aug. 19, 1997, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 46.1  Purpose and scope.

    The purpose of the Adult Education Program is to:
    (a) Improve educational opportunities for Indian adults who lack the 
level of literacy skills necessary for effective citizenship and 
productive employment;
    (b) Expand and improve existing programs for delivering adult 
education services, including delivery of these services to 
educationally disadvantaged Indian adults; and

[[Page 211]]

    (c) Encourage the establishment of adult education programs that 
will:
    (1) Enable Indian adults to acquire adult basic educational skills 
necessary for literate functioning;
    (2) Provide Indian adults with sufficient basic education to enable 
them to benefit from job training and retraining programs and to obtain 
and retain productive employment so that they might more fully enjoy the 
benefits and responsibilities of citizenship; and
    (3) Enable Indian adults, who so desire, to continue their education 
to at least the level of completion of adult secondary education.



Sec. 46.2  Definitions.

    As used in this part:
    Adult means an individual who has attained the age of sixteen or is 
beyond the age of compulsory school attendance under State or tribal law 
and not currently enrolled in a formal secondary or post-secondary 
educational program.
    Adult Basic Education (ABE) means instruction designed for an adult 
who:
    (1) Has minimal competence in reading, writing, and computation;
    (2) Cannot speak, read, or write the English language sufficiently 
to allow employment commensurate with the adult's real ability;
    (3) Is not sufficiently competent to meet the educational 
requirements of an adult consumer; or
    (4) In grade level measurements that would be designated as grades 0 
through 8.
    Adult Education means services or instruction below the college 
level for adults who:
    (1) Lack sufficient mastery of basic educational skills to enable 
them to function effectively in society, or
    (2) Do not have a certificate of graduation from a school providing 
secondary education and have not achieved a GED.
    Adult Education Office means the BIA or tribal office administering 
funds appropriated to the BIA, under the TPA, for Adult Education 
programs.
    Adult Secondary Education means instruction designed for an adult 
who:
    (1) Is literate and can function in everyday life, but is not 
proficient as a competitive consumer or employee; or
    (2) Does not have a certificate of graduation (or its equivalent) 
from a school providing secondary education and in grade level 
measurements that would be designated as grades 9 through 12.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
Department of the Interior, or his/her designee.
    Bureau means the Bureau of Indian Affairs.
    Department of Education (ED) means the U.S. Department of Education.
    Director means the Director, Office of Indian Education Programs, 
Bureau of Indian Affairs.
    Indian means a person who is a member of, or is at least a one-
fourth degree Indian blood descendent of a member of, an Indian tribe, 
and 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;
     Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony 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 (85 Stat. 668) that is 
Federally recognized by the United States Government through the 
Secretary of the Interior for the special programs and services provided 
by the Secretary to Indians because of their status as Indians.
    Tribal Priority Allocation (TPA) means the BIA's budget formulation 
process that allows direct tribal government involvement in the setting 
of relative priorities for local operating programs.
    Secretary means the Secretary of the Department of the Interior.
    Service area means the geographic area served by the local Adult 
Education Program.



Sec. 46.3  Information collection.

    Information collection requirements contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned control number 1076-0120. This information is being 
collected to assess the need for adult education programs. The 
information collection is used to manage program resources and

[[Page 212]]

for fiscal accountability and appropriate direct services documentation. 
Response to this request is necessary to obtain or retain a benefit. 
Public reporting burden for this form is estimated to average 4 hours 
per response including time for reviewing instructions, gathering, 
maintaining data, completing and reviewing the form. Direct comments 
regarding the burden estimate or any other aspect of this form to the 
BIA Information Collection Clearance Officer, 1849 C Street NW., 
Washington, DC 20240.

[67 FR 13570, Mar. 25, 2002]



Sec. 46.10  Eligible activities.

    (a) Subject to availability of funds, funds appropriated for the 
BIA's Adult Education Program may be used to support local projects or 
programs designed to:
    (1) Enable Indian adults to acquire basic educational skills, 
including literacy;
    (2) Enable Indian adults to continue their education through the 
secondary school level;
    (3) Establish career education projects intended to improve 
employment opportunities;
    (4) Provide educational services or instruction for elderly, 
disabled, or incarcerated Indian adults;
    (5) Prepare individuals to benefit from occupational training; and
    (6) Teach employment-related skills.
    (b) Funds should not be used to support programs designed solely to 
prepare Indian adults to enter a specific occupation or cluster of 
closely related occupations.
    (c) The Adult Education Program must be implemented in accordance 
with a plan established by the tribe(s) affected by the program. The 
tribe(s) may determine to set standards in addition to those established 
in this part.



Sec. 46.20  Program requirements.

    (a) The Adult Education Office will implement the program or project 
that is designed to address the needs of the Indian adults in the 
service area. To determine the needs of Indian adults in the area, the 
Adult Education Office must consider:
    (1) Elementary/secondary school dropout or absentee rates;
    (2) Average grade level completed;
    (3) Unemployment rates; and
    (4) Other appropriate measures.
    (b) The Adult Education Office, to ensure efforts that no 
duplication of services exists, will identify other services in the 
area, including those offered by Federal, State and Tribal entities, 
that are designed to meet the same needs as those to be addressed by the 
project, and the number of Indian adults who receive those services.
    (c) The Adult Education Office must establish and maintain an 
evaluation plan.
    (1) The plan must be designed to measure the project's effectiveness 
in meeting each objective and the impact of the project on the adults 
involved; and
    (2) The plan must provide procedures for periodic assessment of the 
progress of the project and, if necessary, modification of the project 
as a result of that assessment.
    (d) Subject to the availability of funds, the project is to be 
supported under the funding level established for Adult Education in the 
formulation of the budget under the TPA process.



Sec. 46.30  Records and reporting requirements.

    (a) The Adult Education Office will annually submit a report on the 
previous project year's activities to the Director, Office of Indian 
Education Programs. The report must include the following information:
    (1) The type of eligible activity, under Sec. 46.10, conducted 
under the project(s);
    (2) The number of participants acquiring the GED, high school 
diploma, and other certificates of performance; and
    (3) A narrative summary of the activities conducted under the 
project.
    (b) Each Adult Education Office must:
    (1) Submit any records and information that the Director requires in 
connection with the administration of the program; and
    (2) Comply with any requirements that the Director may impose to 
ensure the accuracy of the reports required by this part.

[[Page 213]]

Subpart B [Reserved]

[[Page 214]]