Implementation of the No Child Left Behind Act of 2001

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 30, 37, 39, 42, 44, 47

RIN 1076-AE49

Implementation of the No Child Left Behind Act of 2001

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

As required by the No Child Left Behind Act of 2001, the Secretary of the Interior has developed proposed regulations using negotiated rulemaking that address the following issues: Defining adequate yearly progress, which is the measurement for determining that schools are providing quality education; establishing separate geographic attendance areas for Bureau-funded schools; establishing a formula for determining the minimum amount necessary to fund Bureau-funded schools; establishing a system of direct funding and support of all Bureau-funded schools under the formula established in the Act; establishing guidelines to ensure the Constitutional and civil rights of Indian students; and establishing a method for administering grants to tribally controlled schools.

DATES:

Comments on the proposed rule must be received on or before June 24, 2004. Comments on the information collections in the proposed rule should be submitted to the Office of Management and Budget by March 26, 2004.

ADDRESSES:

Submit comments to one of the following addresses. Mail: Director (630), Bureau of Land Management, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, Attention: RIN 1076-AE49. Personal or messenger delivery: 1620 L Street, NW., Room 401, Washington, DC 20036. Direct Internet response:

www.blm.gov/nhp/news/regulatory/index.html,

or at

http://www.blm.gov,

or at

regulations.gov

under Indian Affairs Bureau. Send comments on the information collections in the proposal to: Interior Desk Officer (1076-AE49), Office of Information and Regulatory Affairs, 202/395-6566 (facsimile); e-mail:

oira_docket@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Catherine Freels, Designated Federal Official, PO Box 1430, Albuquerque, NM 87103-1430; Phone: 505-248-7240; e-mail:

cfreels@bia.edu.

SUPPLEMENTARY INFORMATION:

I. Overview of Process

II. Part 30—Adequate Yearly Progress

III. Part 37—Geographic Boundaries

IV. Part 39—The Indian School Equalization Program

V. Part 42—Student Rights

VI. Part 44—Grants under the Tribally Controlled Schools Act

VII. Part 47—Uniform Direct Funding and Support

VIII. Procedural Matters

I. Overview of Process

Pursuant to a directive in the No Child Left Behind Act of 2001 (Pub. L. 107-110; enacted January 8, 2002, referred to in this preamble as “NCLB” or “the Act”), the Department of the Interior established a Negotiated Rulemaking Committee to develop proposed rules to implement several sections of the Act relating to the Bureau of Indian Affairs-funded school system. Negotiated Rulemaking is a process sanctioned by Subchapter III, or Chapter 5, Title 5, United States Code and the Federal Advisory Committee Act, 5 U.S.C. Appendix (FACA), that employs federal representatives and members of the public who will be affected by rules to jointly develop proposed rules. In this case, the Act required the Secretary of the Interior to select representatives of Indian tribes and Bureau-funded schools as well as federal government representatives to serve on the Committee.

The Committee's task was to draft proposed rules to recommend to the Secretary. Upon the Secretary's approval, draft rules are published in the

Federal Register

for written public comments within a 120-day public comment period. After the close of the public comment period, the Committee will reconvene to review these comments and to recommend promulgation of final rules to the Secretary.

The Secretary chartered the Committee under the Federal Advisory Committee Act on May 1, 2003. It is comprised of 19 members nominated by Indian tribes and tribally operated schools. The law required that, to the maximum extent possible, the tribal representative membership should reflect the proportionate share of students from tribes served by the bureau-funded school system. The Secretary also appointed to the Committee six members from within the Department of the Interior. The Committee selected three tribal representatives and two federal representatives as co-chairs. Six individuals were hired to facilitate all Committee meetings.

The Committee met in five week-long sessions in the months of June through October 2003. Each session was preceded by a

Federal Register

notice stating the location and dates of the meetings and inviting members of the public to attend. The Committee divided the areas subject to regulation among four work groups. These workgroups prepared written products for review, revision and approval by the full Committee. Committee decisions were made by consensus. All Committee and workgroup meetings were open to the public, and members of the public were afforded the opportunity to make oral comments at each session and to submit written comments.

The Act provisions for which the Committee prepared proposed rules are:

1.

Section 1116(g) of NCLB:

Develops a definition of “Adequate Yearly Progress” for the bureau-funded school system.

2.

Section 1124 of the Education Amendments of 1978, as amended by NCLB:

Attendance boundaries for bureau-funded schools.

3.

Section 1127 of the Education Amendments of 1978, as amended by NCLB:

A determination of the funds needed to sustain bureau-funded schools and a formula to allocate the current funds.

4.

Section 1130 of the Education Amendments of 1978, as amended by NCLB:

The direct funding and support of bureau-funded schools.

5.

Section 1136 of the Education Amendments of 1978, as amended by NCLB:

The rights of students in the bureau-funded school system.

6.

Section 1043 the Tribally Controlled Schools Act (TCSA) of 1988, as amended by NCLB:

Discharge of the Secretary's responsibilities under this law through which tribes and tribal school boards can operate bureau-funded schools under the grant mechanism established in the Tribally Controlled Schools Act.

Sections II through VII are of this preamble detailed discussions of each of the individual rules listed above.

II. Part 30—Adequate Yearly Progress

NCLB requires each State to submit a plan to the Secretary of Education which demonstrates that the State, through its State Educational Agency (SEA), has adopted challenging academic content standards and challenging student academic achievement standards applicable to all schools in the State, and to develop assessment devices through which student achievement will be measured. For purposes of adequate yearly progress (AYP), the Bureau of Indian Affairs is considered the SEA for the bureau-funded school system.

The Act requires each SEA to define Adequate Yearly Progress (AYP). The

definition of AYP will establish intermediate (annual) student achievement goals in math and reading/language arts. If a school meets the intermediate goal, it has made AYP for that year. Failure of a school to meet AYP for two or more consecutive years triggers remedial actions described in the Act. The Act requires that, by 2014, all students must be achieving at the “proficient” level, as measured by the State's accountability system.

NCLB requires a State and the Bureau of Indian Affairs to define AYP in a manner that achieves the following requirements:

—Applies the same high standards of academic achievement to all schools;

—Is statistically valid and reliable;

—Results in continuous and substantial academic improvement for all students;

—Measures progress of the SEA (BIA) and schools based primarily on the academic assessments; and

—Includes separate measurable annual goals for continuous and substantial improvement in the academic achievement of (1) all students in the school; (2) economically disadvantaged students; (3) students from major racial and ethnic groups; (4) students with disabilities; and (5) students with limited English proficiency.

The AYP definition must also include “additional indicators.” For high schools, the additional indicator must be graduation rates. The SEA must select one additional indicator applicable to schools without a graduating class. An SEA may also identify additional optional indicators of student progress to include in its definition of AYP.

To define Adequate Yearly Progress (AYP) for Bureau-funded schools, the Committee first had to master an understanding of all of the components of Adequate Yearly Progress under the Act and how they interrelate with a final definition of AYP. While the workgroup had to look at the curriculum, standards, and assessments that Bureau-funded schools were using, the Committee did not negotiate these items. The negotiation was limited to the definition of AYP.

The AYP workgroup initially considered a definition that would require all Bureau-funded schools to show that a set percentage of students (

e.g.

, 11 percent) progressed annually from the “basic” achievement level to the “proficient” or “advanced” achievement levels. This idea was abandoned, however, because the Department of Education, which supplied resource consultants to the Committee, advised that this methodology would not be statistically reliable. The Department of Education notes that it is not statistically reliable to aggregate the Bureau-funded school assessment data to make AYP determinations because each school uses a different assessment system and also because, collectively, the assessments in use did not meet the requirements of NCLB set forth in section 1111(b)(3)(C)(ii). Therefore, the committee needed to develop a definition of AYP that was based on a uniform assessment system. As the Committee discovered, BIA had abandoned requiring uniform curriculum and assessments and had instead allowed schools to align their curriculum with the State in which the school was located. Thus, the Committee appeared to be left with two options:

—Selecting a single State's system with one set of curriculum, standards, and assessments; or

—Allowing each Bureau-funded school to follow the definition of the State in which it is located.

After Congress passed Goals 2000, States had to set standards for student achievement. The Bureau chose to adopt national standards, but most schools chose to align with the standards of the State where they were located. The committee found that the Bureau of Indian Affairs has traditionally allowed tribes to follow State's curricula, standards, and assessments. Originally, the Bureau had attempted to create a system in which all of the tribes would follow one set of curriculum, standards, and assessments. Some tribes expressed concern over this approach. Tribes suggested that the students of Bureau-funded schools would be better served by allowing the schools to follow the State's curriculum, standards, and assessments because the Bureau-funded school students are traditionally more transient and sometimes move between Bureau-funded schools and public schools. Therefore, Bureau-funded schools began aligning their curriculum, standards, and assessments with the State in which they were located.

The Committee revised its initial plan and decided to adopt as the Bureau definition of AYP the definition of the State in which a school is located (§ 30.104). However, a tribal governing body or school board can develop an alternative AYP definition and submit it to the Secretary for approval (§ 30.105). This decision implements section 1116(g) of the Act, which expressly permits a tribe or school board to waive the Bureau's AYP definition and develop its own. The Secretary is required to approve an alternative definition as long as it is consistent with section 1111(b) of NCLB, taking into account the unique circumstances and needs of the schools and the students served (§ 30.106).

Tribal representatives on the Committee expressed serious objection to adopting State AYP definitions as the Bureau's definition instead of establishing a Bureau-specific definition, which some tribes and school boards might prefer. There was concern that requiring use of a State's definition would imply that Bureau-funded schools were subject to State jurisdiction, would signal abandonment of the Federal Government's trust responsibility for Indian education, and could diminish tribal sovereignty. In recognition of these concerns, the Committee developed language for the proposed rules that expressly states that nothing in the rules diminishes the Secretary's trust responsibility for Indian education or any statutory rights; affects in any way the sovereign rights of an Indian tribe, or subjects Bureau-funded schools to State jurisdiction (§ 30.100).

A detailed procedure for submission of an alternative AYP definition by a tribe or school board, and for review/approval of that definition by the Secretary of the Interior is included in §§ 30.106 through 30.108. The Department is required by § 30.109 to provide technical assistance for development of an alternative definition upon the request of a tribe or school board.

The Department of Education has expressed concern that § 30.107(a) does not include any mention of rewards and sanctions. While the Department of the Interior feels that the Act leaves responsibility for determining rewards and sanctions with the State (which, in this case, is the Bureau of Indian Affairs), we invite comments on this issue. The Department of Education also expressed concern over the inclusion of science in the subjects that an alternate definition of AYP must measure. The committee included science based on the requirements of section 1111(b)(3)(A) of the Act, but invites comments on the appropriateness of including science in the list of subjects to be measured.

The Department of Education feels that, in § 30.115, it is inaccurate to say that schools must include performance data for grades 10 through 12 in AYP. We disagree, based upon the language in section 1111(b)(3)(C)(v)(I)(cc), which states:

Except as otherwise provided for grades 3 through 8 under clause vii, measure the proficiency of students in, at a minimum, mathematics and reading or language arts, and be administered not less than once during grades 10 through 12.

We invite comments on this issue.

The consequences of failing to make AYP are described in § 30.117. While the remedial status of “school improvement,” “corrective action,” and “restructuring” applicable to public schools also apply to Bureau-funded schools, the latter are exempt from two requirements—school choice and supplemental educational services—that apply to public schools (see § 30.120). These exemptions are expressly stated in the regulation. The regulation also reiterates in § 30.119 the tribally operated school board's responsibility to implement remedial actions, while the Bureau is responsible for implementing these remedial actions at Bureau-operated schools.

The rule specifies in § 30.121 the Bureau's responsibilities under the Act to provide funding and technical assistance to schools who fail to make AYP, and in § 30.122 the Bureau's responsibility to provide ongoing support to all schools to assist them in making AYP. The proposed regulation also details the Bureau's reporting responsibilities in § 30.126.

III. Part 37—Geographic Boundaries

The No Child Left Behind Act requires that all Bureau-funded schools have designated separate geographic boundaries. The statute permits tribes to have input in that process. It was the committee's opinion that the statute extensively prescribed the input tribes may have in establishing school boundaries. The statute left very few gaps for the committee to fill with regulations. The workgroup did, however, feel that the statute was somewhat confusing with regards to what roles Tribes could fill and when. The following section-by-section analysis explains the committee's recommendations on geographic boundaries.

Section 37.100.

This part provides guidance for the process of creating attendance boundaries. The intent of this part is to clarify the role Tribes may have in establishing and revising geographic attendance boundaries. Overall, the group wanted to reserve for Tribes the opportunity to participate in all decisions regarding attendance boundaries and related policies where not statutorily prohibited.

Section 37.101.

This section defines key terms unique to this section of the proposed rule. If a term is not defined in this section or this part, the definition of the local school board should be applied.

Section 37.102.

Much of this section is a restatement of the statute, put in clearer organizational structure. This section is intended to clarify the structure. The workgroup discussed ways to assist readers find the pertinent portions of the regulation applicable to their particular type of school. Specifically, the group recognized that day on-reservation schools would be subject to some different boundary determinations than off-reservation boarding schools (ORBS). Subsequently the group started by dividing the rule into two parts. In doing this, the group discovered that some areas of potential interest applied equally to all schools, whether on-or off-reservation. Ultimately the group decided, and the committee approved, a structure that answered questions applicable to all schools first. If a school does not find answers in the section applicable to all schools, they should turn to the section applicable to their particular type of school. For this reason, this part is organized as follows:

Subpart A—All Schools: This paragraph answers questions for any Bureau-funded school, including ORBS.

Subpart B—Day schools, On-Reservation Boarding Schools, and Peripheral Dorms: This section answers only questions for the schools listed. Nothing in this paragraph addresses ORBS unique situation.

Subpart C—Off Reservation Boarding Schools: This section addresses questions uniquely applicable to ORBS. Nothing in this paragraph applies to on-reservation schools of any type.

Subpart A—All Schools

Section 37.110.

This section highlights for tribes their authority to participate in the process of establishing school boundaries. Additionally, this section serves as a reminder that, if a Tribe chooses not to establish their own school boundaries, the Secretary must draw the boundaries for them. The Secretary is charged with ensuring all schools have boundaries.

Section 37.111.

This section clarifies that Tribes may have a role in establishing geographic boundaries. Specifically, the proposed rule highlights the Tribe's ability to authorize transportation funding for their member-students attending schools outside of their designated geographic boundary. A student's designated geographic boundary is the geographic attendance area of the school that covers the student's primary residence. The Bureau will not automatically provide transportation for students who choose to attend a school outside of their designated geographic attendance area. The Bureau may only provide transportation funding for students attending outside of their designated geographic attendance area when the student's Tribe authorizes such expenditure.

This section is of particular importance to tribes that seek to control where their students enroll in school. The committee was aware of some Tribes seeking to prevent their member-students from attending other Tribes' schools. Initially, the group had proposed rule that more thoroughly emphasized the Tribe's authority to authorize or withhold transportation funding. The group discussed an interpretation of the statute that permitted Tribes to pass resolutions restricting parental choice. However, a key component of the No Child Left Behind Act is parental choice. Though the group tried, they were unable to draft a regulation that observed Tribal restrictions on attendance, yet still permitted parental choice, as required by statute. Ultimately, the committee agreed to a more succinct explanation that emphasized Tribal authority to open school boundaries.

Absent from this section is a prescription on how a tribe authorizes transportation funding. Originally the group suggested manners in which a Tribe would provide this authorization. In the committee-at-large discussion, the group's description of authorization was deemed unclear and unnecessary. Additionally, the sentiment was expressed that the tribe should determine how to authorize funding.

Section 37.112.

All schools must have boundaries. This section was included to serve to further notify tribes that, if they fail to act and set their own school boundaries, the Secretary must and will do it for them.

Subpart B—Day schools, On-Reservation Boarding Schools, and Peripheral Dorms

Section 37.120.

This section was provided to put Tribes on notice of the opportunity to establish and revise current school boundaries. This section clarifies that the established boundaries currently in use will remain in place unless revised by the appropriate Tribal governing body. This section is intended to encourage Tribes to review existing boundaries and use the processes defined in this Part to make changes to meet current needs.

Section 37.121.

Who establishes geographic attendance boundaries under this part? This section reiterates the

statutory prescription for when a Tribe may establish geographic attendance boundaries for its schools. The work group felt that the statutory language was unclear and may inadvertently preclude Tribes from acting to change school boundaries.

Section 37.122.

Tribes have ongoing authority to suggest changes to and participate in the revision of geographic attendance boundaries. This section explains the process Tribes must use to change geographic attendance boundaries, regardless of when the Tribe suggests such changes.

This section is also a restatement of the statutory language. Again, the work group felt that the statutory language alone may not sufficiently inform Tribes of the process for changing school boundaries. Specifically, the group sought to clarify some of the limitations on the Secretary's ability to change school boundaries and highlight the weight and importance the Tribe's views have in the boundary setting process.

(a) The group restated the limitations placed on the Secretary's ability to change existing school geographic attendance boundaries. After notice of the Secretary's intention to modify school boundaries, Tribes must be given 6 months notice before changes become effective. In that time the Tribes have an opportunity to suggest different modifications to the Secretary's proposed changes. The restatement of this limitation is intended to inform Tribes of their role in boundary determinations.

(b) This paragraph signifies the impact of Tribal views in the boundary setting and revision process. If a Tribe determines that the geographic attendance boundaries of a school is not meeting the needs of the Tribe or the students, the Tribe may request that the Secretary modify the boundaries. The group determined that the letter requesting the modification should go to the Director of the Office of Education Programs. The Office of Indian Education Programs must respond to the Tribal requests for a boundary modification after consulting with the Secretary of the Interior and the Assistant Secretary-Indian Affairs. If the Tribe's suggestion is rejected, a written explanation must be provided detailing why the proposed changes do not meet the needs of the Indian students to be served and how the proposed changes would affect the affected programs. Such requirements will ensure that Tribes will have an opportunity to give meaningful input into setting school boundaries and the process is transparent.

Section 37.123.

This section highlights the authority of the Tribe to create their own processes to develop and revise geographic attendance boundaries. The committee wanted to place as few prescriptions on Tribes as possible. The group was careful to craft a regulation which respected Tribal autonomy and sovereignty concerning education. Consequently, the group did not want to tell Tribes who to consult when revising school boundaries. It was the intention of this section to emphasize coordination among entities involved in the education of the student when setting boundaries. The referenced “entities” with which consultation should be made were not specifically listed as it was thought the individual Tribes could best determining who should be included in the consultation process.

Section 37.124.

At the time of drafting this rule (2003), a moratorium existed on construction of new Bureau-funded schools. Despite the moratorium, provisions of the No Child Left Behind Act could be interpreted to specifically include and apply to new Bureau-funded schools. In consideration for such an interpretation, this section of this Part was included in the regulations. Nothing in this rule, however, provides authorization for additional Bureau-funded schools to be constructed absent Congressional authorization. Should such schools be established in the future, this section would apply.

Section 37.125.

This section explains the authority of Tribes to determine whether student tribal members may receive transportation funding when such students desire to attend a Bureau-funded school outside of the student's designated geographical attendance boundary. This section also explains the process by which transportation funding may be authorized for students living off the reservation of the Tribe in which the student is enrolled. The drafters desired to preserve the maximum degree of discretion, within the bounds of tribal jurisdiction, for Tribes to exercise in addressing determinations of transportation funding.

Where possible schools should provide services to eligible students living near the reservation though such students are not included in the schools' geographic attendance boundary. This section recognizes prior practices that permitted eligible students who resided near the reservation to enroll in Bureau-funded schools.

Subpart C—Off-Reservation Boarding Schools

Section 37.130.

The Secretary of the Interior determines the boundaries for ORBS. While the Secretary should consult with all tribes that fall within the boundaries of a particular off-reservation boarding school, it is the Secretary and not the ORBS or Tribe who establish the boundary. The group discussed stating in the regulation that the Secretary could not establish overlapping boundaries for ORBS. Examination of the map of boundaries currently in use revealed that, currently, no ORBS boundaries overlap. Though the group desired to mitigate some of the cross-country student recruitment by ORBS, the committee felt that the restriction placed on transportation funding was a sufficient hindrance. Initially, the group had included a specific subsection clarifying that students were only entitled transportation funding to attend the student's designated ORBS. That section was taken out in the committee-at-large discussion. Transportation funding pertains to all students, whether attending school on-or off-reservation. The language addressing proper authorization of transportation funding was initially discussed in the context of all schools. The committee could not reach consensus on who was the appropriate entity to authorize transportation funding. The work group then suggested only referencing transportation authorization in the section on ORBS. The same concerns arose and further discussion of transportation was thought to be redundant. The committee resolved that a succinct statement addressing transportation funding in the section applicable to all schools was sufficient.

Section 37.131.

This section clarifies that any ISEP eligible student may elect to attend an ORBS. The group intended that all ORBS will have separate, non-overlapping geographic attendance boundaries that will cover the entire United States. Students may attend the ORBS designated for the student's primary residence with or without Tribal permission.

IV. Part 39—The Indian School Equalization Program

Under the No Child Left Behind Act, Congress required the Committee to establish, through negotiated rulemaking, rules regarding a formula for the “minimum annual amount of funds necessary to sustain each Bureau-funded school” and a formula to distribute funding to BIA schools. 20 U.S.C. 2007. As with the other rules the

Committee developed, the Committee established a Funding Workgroup to develop draft rules for review by the full Committee.

The Bureau currently funds its schools through published procedures known as the Indian School Equalization Program (ISEP) and a mechanism defined in the ISEP known as the Indian School Equalization Formula (ISEF). The current equalization formula assigns weighted units to each student enrolled in grade levels K-12 and when applicable to homeliving programs. Each weight has a different value, and the weight of 1.15 is the base weight for all students. In addition to the base weight, increased values are assigned to certain grade levels to compensate for additional cost. Moreover, supplemental programs providing bilingual education, gifted and talented education, and intense residential guidance are funded by increased weighted values. The total weights for each school are determined by multiplying the student enrollment for each program area by the weights. This total of weighted student units for each school is then multiplied by the base unit value to determine the funding amount for each school. The base unit value is determined by dividing the total of all weighted student units generated by each school into the total amount appropriated for distribution.

The Committee reviewed the current BIA funding mechanism and distribution practices. The Committee understands that the current funding formula at 25 CFR part 39 was developed to provide equity in funding across the BIA school system. The Committee identified areas where the current formula does not provide equity and uniformity in the BIA school system. For example, all funding is currently based on a “count week” in September. This one-week period does not provide a complete school year count of all students served by a school or residential program. Therefore, any population increase or decrease after the September count week is not accounted for under the current system. Some Committee members suggested that the concept of a one-week count week encourages abuse for the following reasons: (1) There is no incentive to retain students after the count week is over, (2) there are many opportunities for schools to inflate student enrollment by busing children in or sponsoring events to attract students for that week, and (3) there are incentives to inflate the number of students identified for supplemental services, such as bilingual and gifted and talented, because these supplemental programs provide for increased funding. The Committee attempted to minimize the opportunities for abuse in the proposed rule.

One of the Committee's primary concerns was accountability, which is a critical element of the Act. The Committee tried to build into these proposed rules accountability for both BIA-operated and tribally operated schools, as well as accountability for those BIA officials overseeing the Indian education program. Because accountability is critical to implementing ISEP and ISEF, the Committee developed provisions in the new rules to hold both BIA and all Bureau-funded schools accountable to standards promoting equality and fairness.

For example, in , the Committee proposed a section to provide for increased accountability through reviews of both the school's certified count and the education line officer's count verification. The Committee recommended that the Director annually conduct random audits, and that an outside auditor also conduct annual, random audits to ensure the accuracy of ISEP requirements and the ISEF process.

The Committee believes that all schools funded by BIA must accept the responsibility to be accountable in all aspects of their operations. Each tribal organization, school board, and administrator in the system must accept the challenge to make ISEP work in the best interests of all students served by the Bureau-funded school system. The proposed rules require each school to maintain individual files and certify the accuracy of their contents relating to necessary documentation of student eligibility to receive base and supplemental services. In addition, the education line officer is held accountable to verify that students meet the necessary standards for base and supplemental services through the verification process. Each verification will be reviewed by either the Director or an outside auditing firm.

The intent of the rules needs to be considered and all parties involved should be committed to making ISEP work, rather than trying to find ways to give their school an advantage over the other schools in the Bureau-funded school system. It is a matter of personal and professional integrity and fairness for those organizations and individuals charged with administering the rules to find ways to make ISEP and ISEF work properly.

The Committee also feels that accountability must be present at all levels of BIA and the Office of Indian Education Programs (OIEP). BIA must fulfill its obligation to the students served by the Bureau-funded school system so that each child is given equal opportunity to be successfully educated. Schools should not be penalized for BIA's failure to administer the law and rules fairly. These proposed rules were drafted to comply with the section 1120 of the NCLB that states:

It is the policy of the United States to fulfill the Federal Government's unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children * * * ensuring that the programs of the Bureau of Indian Affairs-funded school system are of the highest quality and provide for the basic elementary and secondary educational; needs of Indian children, including meeting the unique educational and cultural needs of those children.

Section 1127 Funding Formula

Under NCLB Congress required the Secretary, through this Committee, to undertake three specific tasks: (1) To establish a formula for determining the minimum annual amount of funds necessary to sustain each Bureau-funded school; (2) to consider the cost of providing academic services which are at least equivalent to those provided by public schools in the State in which the school is located; and (3) the development of a pro rata formula to distribute funding under the ISEF.

Minimum Amount of Funding to Sustain Each Bureau-Funded School.

The Committee discussed various options for determining the minimum amount of funding needed to sustain each bureau-funded school. Most options required BIA to have data regarding the actual costs associated with Bureau-funded schools. Consequently, the Committee is proposing a formula based on the dollar value of a student unit nationally as reported by the National Center for Education Statistics (NCES). By looking at the NCES and comparing Bureau-funded schools with Department of Defense schools and District of Columbia public schools, the Committee is proposing a formula that would be based on an accurate cost estimate of operating Bureau-funded academic schools. A similar formula would also more accurately determine the cost of housing a residential student. Moreover, the Committee recognizes that on average, the actual cost for a residential student is two times or more than that of an academic student. However, this formula cannot be fully implemented until the Bureau can collect the data necessary to develop an accurate summary of the amount of funding needed to provide the minimum amount of funding necessary to sustain each Bureau-funded school.

Upon receipt of adequate education cost data, the Committee would hope that the Department could present this data to Congress so that it could review whether it provides sufficient funding to all Bureau-funded schools and residential programs.

The formula establishing the minimum amount of funding to sustain each Bureau-funded school is located in subpart H of the proposed rule. The Department seeks comments on whether the material explaining the derivation of the formula should be included as an appendix, rather than in the body of the rule.

The Cost of Providing Equivalent Academic Services.

One of the responsibilities imposed upon BIA by the NCLB is to determine the level of funding necessary to finance Bureau-funded schools and residential programs at a level at least equal to that provided by the public schools in the states in which the schools are located. One recent report from the General Accounting Office indicates that the data available is not adequate to allow for a comprehensive and accurate comparison between similarly situated state public schools and Bureau-funded schools. Due to time constraints the Committee did not develop a proposal for a data reporting system that would capture specific data for a comparison between state and BIA-funded schools. However, the Committee did develop a formula to develop the minimum amount of funding to sustain each Bureau-funded school which looks at other similarly situated school and residential programs.

Pro Rata Formula.

The Committee was also required to develop a formula to distribute funding appropriated by Congress. To develop a distribution formula, the Committee reviewed the existing distribution formula and developed a recommended formula that would better meet the needs of Bureau-funded schools and provide a more equitable distribution of ISEP funding. The Committee took its responsibility very seriously and made a conscientious effort to consider all issues relevant to the rules being developed. The following issues were matters that the Committee discussed at great lengths as they developed the ISEF in order to distribute appropriated funds:

Student Count.

In Subpart C, the Committee is proposing new rules for undertaking a count of the student population served by BIA school system. These rules provide for the use of an average daily membership for academic purposes and the use of a three-week count period for residential programs.

The Committee decided against the continuation of a count week for academic programs. The Committee determined that the concept of using one week in the entire school year to determine student attendance in academic programs did not provide an accurate reflection of the program's population for the entire school year. A concern that the Committee considered when deciding not to continue an academic count week was the issue of Spring enrollment. Because the current “count week” is the last week in September, school funding is not reflective of a school's enrollment and attendance for an entire academic year. Academic and residential programs may experience sharp increases or decreases in enrollment during the spring semesters, and a one-week count period does not take these fluctuations into account. The Committee also considered using a count period with varying lengths of time for academic funding, however this was also rejected.

The Committee did decide to retain a count period for residential programs. The Committee recommends that the count period for residential programs be the first full week in October. Moreover, the Committee recommends that a student must also be in attendance in a residence program the week preceding and the week following the October count week. Thus, the residential period is a three week period.

The Committee also decided to fund the residential program on the number of nights of service provided. The current funding mechanism funds all residential programs seven-night programs. There seem to be an inequity as some residential programs only offer three or four nights of service, while others operate for seven full nights of service. Therefore, the Committee recommends that a residential program that offers five nights or more of service shall receive full residential funding, the equivalent of 7/7 weighted student unit. Any residential program offering less than five nights of service shall be apportioned a prorated share of funding at 4/7 weighted student unit.

In addition, the Committee recommends that at least 50 percent of the residency levels established during the count period be maintained and residency attendance also be reported to OIEP monthly. If a residential program does not maintain at least 50 percent of its count period enrollment, then the residential program will lose one-tenth of its current year funding allocation. The justification for this recommendation was to encourage residential programs to retain students throughout the entire school year.

Average Daily Attendance (ADA) versus Average Daily Membership (ADM).

The Committee recommends the use of Average Daily Membership (ADM) to count students for purposes of ISEP academic funding. Before deciding to base the student count on ADM, the Committee considered the merits of both Average Daily Attendance (ADA) and ADM. The Committee adopted ADM for purposes of a student count because it was decided that ADM was a more reasonable and fair mechanism for counting student enrollment and attendance. Unlike ADA, ADM takes into consideration a grace period when students are sick or absent from school. The Committee feels that ADM is more accurate and equitable than a “count week” because it provides a comprehensive look at student enrollment and attendance throughout the entire academic year. In addition, the Committee believes that ADM would help prevent some of the abuses that are inherent in the current funding mechanism and also encourage greater accountability in the academic program. Because ADM is based on the entire school year, there is now a financial incentive for student retention and maintaining student attendance throughout the school year, which the Committee believes will result in higher graduation rates.

Three-Year Rolling Average.

The proposed rules in § 39.205 provide for funding to be based on a 3-year rolling average. A 3-year rolling average is the mechanism used to determine the amount of money allocated for a school year based on the average of the three previous years' allocations. The Committee felt that the rolling 3-year average would provide a more stable funding base. Thus, enabling a school to better plan and budget for the upcoming school year.

For example, if a school experiences a drastic enrollment decrease beginning in the 2006 school year, the 3-year rolling average would allow the school a 2-year window to adjust its staff and other related costs. The Committee believes that schools and the OIEP should provide timely information related to ADM, in order to promote accuracy of the 3-year rolling average.

Payment Dates.

The Committee is recommending that BIA distribute 80 percent of a school's funding for the upcoming school year by July 1. This 80 percent would be based on the 3-year rolling average of ADM (base and supplemental programs). The Committee also recommends that BIA distribute the remaining twenty percent of funding by December 1. This 20 percent would reflect any adjustments

made by the verification, audit or appeals processes.

In reviewing the Committee's proposed rule, the Federal team has serious concerns regarding the provisions that states that, “No school will receive less than 80 percent of the amount received the previous year.” The concern is that the purpose of the 3-year rolling average is to protect a school against any sharp increases or decreases in student enrollment. Therefore, this mandated 80 percent seems duplicative. The Federal team is also concern that if a school with decreasing enrollment were automatically given 80 percent of their funding in July, the school would then be responsible to refund BIA for any overpayment in funding.

Contingency Fund.

BIA has existing rules regarding the use of the contingency fund. The current rules at 25 CFR 39.70-39.78 authorize the awarding of contingency funds to replace items in the event of their destruction by earthquake, fire, flood storm, or other “Acts of God.” The Committee reviewed these rules and is proposing revisions.

The Committee determined that the Director's Contingency Fund should only be used to provide for unforeseen, unpredictable, and emergency circumstances. In order to promote transparency in the allocation of contingency funds, the Committee required that the Director annually notify all Bureau-funded schools and appropriate tribal governing bodies of contingency fund allocations.

Ten percent enrollment increases.

The Committee also discussed whether to include an adjustment for schools whose student population increased by more than 10 percent over the previous 3-year average. However, due to time constraints, the workgroup did not present this issue to the Committee. The Committee would like to seek comments as to the necessity of a provision providing adjustment funding for schools that experience a 10 percent increase in student population from the previous school year's ISEP count. Once again, the purpose of the 3-year rolling average would be to protect against these types of significant enrollment increases. The Committee also discussed that this provision would favor small schools, as a 10 percent increase would be more readily available to a school with a small population.

Special cost factors.

NCLB required the Committee to consider the following special cost factors:

“The isolation of the school; the need for special staffing, transportation, or education programs; food and housing costs, maintenance and repair costs associated with the physical condition of the educational facilities; special transportation and other costs of isolated and small schools; the costs of home-living (dormitory) arrangements, where determined necessary by a tribal governing body or designated school board; costs associated with greater lengths of service by education personnel; the costs of therapeutic programs for students requiring such programs; and special costs for gifted and talented students.”

As a rule, the Committee considered “special cost” factors to be those factors that only affected a discreet number of schools and were not prevalent in the Bureau-funded school system. The Committee identified the following special cost factors: Language development, isolation factors, gifted and talented, school board training, and small school adjustment. Other special cost factors were considered, but did not receive an additional weighted student unit.

The Committee evaluated the impact that special cost factors have on the ISEF, as special cost factors re-allocate the available funding and provide more funding for these “special costs” at the expense of a more general distribution. The Committee was also concerned about how special cost factors impact residential programs, dorm programs, and schools that do not place an emphasis on these types of programs. By allocating more funding to “special programs,” the Committee was choosing to make less money available in the general pool. The Committee is seeking comments on the priority of these choices.

Language Development.

In § 39.130, the Committee recommends a special cost factor of .13 for language programs. The Committee believes that the need to restore and maintain Native Languages is important. Historically, the government made a concerted effort to eliminate the Native Languages in an attempt to force the assimilation of Indian people. Now there is a desire to maintain and restore those Native Languages and the culture tied to them. Research has indicated that students who are proficient in their Native Language will also achieve better academically. The Committee believes a Native Language Development Program is an important pathway to appropriate cultural knowledge and expression.

The Committee also recognizes BIA's obligation to provide English language development services to students who are limited English proficient. Therefore, any student who is identified as limited English proficient is required to receive limited English proficiency services.

Isolation factors.

Isolation factors were discussed at length and the Committee did not have sufficient data to rate the isolation factor of each school in the bureau-funded school system. Historically, most Bureau-funded schools are isolated by the placement of Indians on reservation lands. In general, the Committee felt that special weights for isolation factors were better addressed as a transportation issue.

However, the Committee did determine that there are some exceptional circumstances that did warrant additional funding due to the severe isolation and remoteness of a particular school. The Committee agreed that Havasupai Elementary School, which is located in the Grand Canyon, had isolation factors beyond those experienced by most schools. Havasupai Elementary School has food and other important items delivered by mule and/or helicopter. The Committee seeks comments as to whether Black Mesa Community School is also a school that has an extreme isolation factor that is unique and is not generally experienced by a majority of the Bureau-funded schools.

The Committee seeks comments on the following chart and the definition of “established community.” This chart was not adopted by the Committee and did not receive consensus from the Committee. The Committee could not reach agreement on whether there is sufficient documentation to clearly identify that certain isolation factors were not experienced by a majority of Bureau-funded schools. The Committee encourages tribes and schools to submit public comment on the following chart so those comments may be given consideration by the Committee before final recommendations for rules are made. The purpose of these comment will be to determine whether other less extreme isolation factors should be given an additional weight under the ISEF.

A school which demonstrates that it meets one or more of the following criteria will be awarded. An isolations cost factor will equal the value of the total number of WSU identified for the applicable criteria, provided, however, that no school will be awarded an isolation factor of more than 12.5 WSU.

1. The school is located at least 60 road miles (one way) from the nearest established community

1.5 WSU

2. The school is dependent upon animal or light aircraft for transportation of persons, services, and supplies for the operation of the school

12.5 WSU

3. The school's primary access route is an unpaved road of 10 miles or more

2.0 WSU

4. The school's primary access route is dependent upon a bridge or road that is routinely subject to unavailability during periods of severe weather or floods

2.0 WSU

For the purposes of this section, the term “established community” means a population center (Metropolitan Statistical Area or an incorporated city or town) having a year-round population of 1,500 or more, provided that it has minimal essential medical facilities (at least one physician and one dentist) available to all students and employees of the school on a non-emergency basis, 24 hour law enforcement services, a post office, retail grocery store and retail motor fuel station.

Gifted and Talented.

The Community discussed Gifted and Talented considerations at length. Some members of the Committee are concerned that schools that claim a disproportionate number of students for gifted and talented services ultimately reduce the amount of money available to all students in the ISEF base. The reduction in this base could adversely affect residential programs (which are not eligible for the gifted and talented weighted unit) and other schools who either do not have a gifted and talented program or who have very few students who meet the gifted and talented requirements. The Committee would like to seek specific comments on the potential impact on base funding of residential programs if the number of students identified as gifted and talented increase significantly.

The Committee considered, but did not adopt the establishment of a ceiling on the number of students each school could claim for a gifted and talented weighted unit. This ceiling or cap was considered in order to ensure that ISEP funding was evenly distributed throughout the Bureau-funded school system. Some members of the Committee, and members of the public who commented, did not support a cap on gifted and talented. One of the concerns regarding the imposition of a cap is that a cap not only limits the percentage of students who can be counted as gifted and talented, but may also establish a minimum threshold to which every school may feel obligated to meet. Ultimately, the Committee decided not to impose a cap on Gifted and Talented. However, the Committee did place emphasis of the importance of a process for identification of gifted and talented students as well as documentation that gifted and talented services were provided to identified students.

The proposed rules at § 39.106 provide for the eligibility standards and oversight of gifted and talented funding. These rules require that a student can be identified as gifted and talented in five specific categories: intellectual ability, creative/divergent thinking, academic aptitude, leadership and visual and performing arts. However, a school cannot identify more than 15 percent of its student population as gifted and talented in either the leadership or visual and performing arts categories. The proposed rules outline how students are to be identified, nominated, and assessed as gifted and talented. In addition, the rules provide that a student who is identified as gifted and talented must receive services not ordinarily provided by the school which meet the goals and objectives specified in the student's education plan.

School Board Expenses and Training.

The current rules at § 39.90 govern how funding is set aside for school board training, eligible training activities, and the approval process for training expenditures. NCLB requires a minimum of 40 hours of school board training for new school board members. School board training issues will vary from year to year and with each school. There will be some schools where there is no need for training since all board members are returning and have already been trained. In other cases, there will be a need for training as required by law. Thus, the Committee included a provision at § 39.600 to address this issue.

The Committee also recommends an amount equal to a total of a 1.2 weight to assist Bureau-operated schools in paying for school board training. Unlike contract or grant schools, Bureau-operated schools are unable to pay for school board training through Administrative Cost Grants. Instead, Bureau-operated schools must pay for school board training from ISEP funding.

Small School and Small High School Adjustment.

The Committee determined that a factor for a Small School Adjustments was important because these schools do not have economies of scale to provide adequate educational opportunities for their students. The proposed rules at § 39.140 provide for this adjustment. By offering an adjustment (additional weighted units) for schools characterized by smaller populations, these schools should have increased opportunity to offer more or better academic services to their students. This is especially true for small high schools that are required to offer departmentalized programs.

Residential Programs.

Current BIA rules at § 36.71 provide for a cost factor for a program entitled “Intensive Residential Guidance (IRG).” This factor is available after the establishment of specific activity programs, individual student diagnostic procedures, and the development of individual student treatment plans and measurements of student progress. The Committee recommended that the current additional weight for the IRG program be eliminated and be added to the residential base. The result of removing IRG to the base is an overall increase in the residential base of about .35.

The Committee heard many comments that the IRG program was cumbersome and did not guarantee that supplemental services were provided to students with extra ordinary needs. However, the Committee did decide that when the Committee undertakes negotiated rulemaking for home living standards that certain standards be included to aid students with special needs, such as, mental health, substance abuse and other needs. The Committee discussed that there is a high probability that the actual cost for a residential student is two times that of an academic student, however, time restraints did not allow for further Committee discussion. The therapeutic dorms program was also discussed and the Committee decided not to include this program in the ISEF because this program is not funded under ISEP.

Off-Reservation Boarding Schools.

The Committee determined that the Off-Reservation Boarding Schools (ORBS) population represents a unique population of students. Specifically, the Committee was concerned about those ORBS schools that receive a large number of students as a result of a tribal court mandate or extreme disciplinary problems. The Committee is seeking comments as to whether ORBS schools should receive an additional weighted unit to fund special costs that are not equally shared throughout the system.

Accreditation.

The Committee recognized that accreditation may produce some special cost factors, but decided that an additional weighted unit was not necessary for those schools seeking accreditation.

Distance and Other Alternative Learning.

The Committee discussed the impacts of Distance Education, Vocational Education, Pre-school early childhood-education, and the education of non-ISEP eligible students. The Committee decided that these issues should be covered by the base program

or other related programs. For example, pre-school early childhood-education might be funded by a program such as Head Start. The Committee also seeks public comment to determine if ISEP or another funding mechanism might be necessary to fund the education of non-ISEP eligible students who attend Bureau-funded schools.

Costs Associated with Greater Lengths of Service.

The Committee discussed the costs associated with greater lengths of service by educational personnel. It was recognized that there is a difference between bureau-operated schools required to use the DOD salary schedules and grant/contract schools which use their own salary scale. The Committee decided not to include this factor in the formula since many tribes made the decision to become grant or contract schools in order to have more flexibility and discretion.

Facility Maintenance Costs.

The Committee discussed maintenance and repair costs related to Bureau-funded facilities. However, the Committee decided that these costs were funded separately from the ISEP and not relevant to ISEF.

Special Education.

The Committee discussed whether students identified as in need of special education services should be allocated an additional weighted unit. Some members of the Committee believed that having an additional weighted unit for special education would be desirable. After considering the issue in depth, the Committee decided to keep special education funding in accordance with the current rules which mandate that each school set aside 15 percent of their basic instruction allotment to meet the needs of students with disabilities. If the 15 percent is inadequate to fund services necessary for eligible students with disabilities, schools may still apply for Part B funding. The Committee did agree that the OIEP's administration of Part B special education funding needs to be improved. Many expressed concerns that access to Part B funding was cumbersome and difficult. Therefore, the Committee recommends that OIEP provide training and technical assistance to better serve the Bureau-funded schools in applying for Part B funding.

Transition/Phase-In Provisions.

At § 39.220, the Committee recommended a phase-in provision to implement the proposed rules. For the first year after the effective date of publication of a final rule, OIEP will calculate ADM based on the prior 3 years' count period to create an average membership for funding purposes. For the second year and third years, the school will use a combination of ADM count(s) and applicable ISEP count(s) under the existing rules. Within three years of implementation of the final rules, OIEP will calculate funding on a 3-year rolling average of each school's ADM.

Transportation.

Although the Committee would like to establish a formula that reflects the actual transportation costs of Bureau-funded schools, the Committee determined that there was insufficient information to develop this actual cost formula at this time. To address this issue, the Committee is proposing new rules for data collection and is proposing an advance notice of proposed rulemaking so that the public can comment on the formula the committee would consider once the data is available. In the meantime, the Committee is proposing that the current OIEP transportation policy be the proposed transportation rule.

In addition to the current transportation policy, the proposed rules would require Bureau-funded academic and residential programs to report their actual transportation expenditures. This information is critical to develop an actual cost transportation formula. One reason the Committee wanted to develop an actual cost formula was to better reflect a school's transportation costs to avoid situations where these costs take away from the instructional funding of the schools.

Conclusion

The Committee recognizes that adoption of new formula for distribution will impact each school differently. It is possible that some boarding schools may be heavily impacted by the new formula. The Committee feels strongly that the ISEF should distribute funds in a fair and equitable manner that gives

all

students equal opportunities to receive a quality education. The Committee believes that certain administrative changes are necessary at the local school and Bureau of Indian Affairs level to provide more educational opportunity to the students served by the Bureau-funded school system.

The Committee cannot emphasize strongly enough the importance of careful consideration of these proposed rules by Bureau-funded schools, tribes with members who attend Bureau-funded schools, and parents and students served by Bureau-funded schools. The Committee strongly encourages anyone who has an interest in these proposed rules to submit public comments that the Committee may consider when finalizing the rules.

V. Part 42—Student Rights

Section 1136 of Title IX of the Act required the Secretary to prescribe rules to ensure the constitutional and civil rights of Indian students attending Bureau-funded schools, including rights to privacy, freedom of religion and expression, and due process in connection with disciplinary actions, suspension, and expulsion.

Section 42.1.

This section provides objectives and guidance for school boards when determining how to apply student rights and due process. It lists only the minimal considerations a school should make to fulfill the due process and student rights obligation owed to students. The following objectives may also be considered: Providing students with a safe learning environment, the opportunity to observe Native customs and practices (consistent with health, safety, and welfare), and an education provided by educators trained in Native pedagogies. The absence of these objectives from the regulation was due to an understanding that in some circumstances consideration of the objective could not be made or would be inappropriate. Wherever possible to the extent practicable school boards should aspire to give consideration to the aforementioned objectives omitted from the regulation.

Section 42.2.

This section prescribes the minimum rights to which all students at Bureau-funded schools are entitled. Where possible or applicable, a school may provide more rights than required by this rule. Nothing in this section limits existing student rights provided in the Constitution, school board policies, or elsewhere. This section should be read in conjunction with the stated purpose for the rule and the preamble explaining that purpose.

Section 42.3.

This section prescribes how schools are to apply the due process obligations. It was the group's desire that the rule be interpreted so that a school board would apply Alternative Dispute Resolution (ADR) first whenever possible. It was realized that some situations would arise where use of ADR processes would not be permitted under school board policies (

i.e.

, offenses that merit immediate suspension under school board policy or law). It was understood that in some situations ADR would yield a “consequence” other than traditional forms of formal punitive actions (

i.e.

, detention, suspension, expulsion).

It was the committee's desire that the school board work with the student to ensure reintegration of the student into the school community after using ADR

processes. The group understood reintegration to mean returning the student to regular student status after the student allegedly or actually committed a violation. Where ADR and subsequent reintegration of a student are not possible, the school could then apply traditional formal disciplinary procedures.

The committee wants schools to be permitted to craft their own processes for dealing with violations of school policies. It was also recognized that some of the processes schools used to address student violations were not formal disciplinary actions. Often schools wish to apply ADR processes first or instead of more formal proceedings.

In circumstances where ADR cannot be used, a school may immediately apply formal disciplinary proceedings. The goal of any process used to address violations of school policies should be returning the student to active student status as quickly as possible.

Section 42.4.

In this section the group attempted to provide guidance on what was meant by ADR processes. The objective of this section was to present examples of alternatives to traditional forms of formal punitive actions typically applied to violations of school policies. Specifically, tribal forms of dispute resolution could be used in place of formal disciplinary processes. It was realized that ADR processes would not always result in traditional forms of formal punitive actions (

i.e.

, detention, suspension, expulsion). Outcomes of ADR processes were not to be discredited merely due to a resolution that applied alternative “consequences.”

Section 42.5.

In this section the group provided guidance on when it was appropriate to apply ADR techniques in place of more formal disciplinary proceedings. Ultimately, the school board has the discretion to determine what process to apply and when. This section provides points schools should consider in making their determinations.

(a) A school may decide whether use of ADR is appropriate under the circumstances. Where possible, ADR should be used before formal disciplinary proceedings.

(b) Where articulated policy or law clearly defines immediate consequences, a school may not discretionarily apply ADR processes.

(c) Although the committee prefers that school boards apply ADR processes first, use of ADR procedures in every circumstance is not required.

Section 42.6.

This section prescribes the rights to which all students are entitled in disciplinary proceedings. School boards should strive to provide students as much information and time as is necessary to defend themselves against allegations of disciplinary violations. School boards may not limit the amount of due process provided to a student in disciplinary actions. The group felt it essential that the accused student be provided the maximum due process available. Due process demands that all students be provided a fair and impartial hearing for all alleged violations of school policies. In certain situations immediate punishment may be applied, but due process must not be diminished merely because punishment has already begun.

(a) Schools must give students written notice of charges within a reasonable time. Reasonable time is notice provided promptly after the charges have been made.

(1) The copy of the regulation that the student is charged with violating must be the same language provided in the most recent copy of student policies and guidelines issued to students by the school.

(2) The school must inform the student of sufficient facts that constitute the alleged violation so the student may defend the allegation.

(3) Any information the school obtains leading to or arising from any charge must be made available to the accused student.

(4) A student must be informed if the school intends to consider any portion of the student's record in disciplinary decisions.

(b) Generally, the school must provide a student a full due process hearing before the student is punished.

(1) There exist certain offenses for which school policy or law requires immediate punishment. In these circumstances, this rule is not intended to prevent those school policies or laws from applying. Rather, the punishment may be effective immediately in a temporary manner pending full hearing.

(2) In rare cases of emergency situations not addressed by school policy or law, immediate removal of the student may be necessary for the protection of the accused student, student body, or school faculty. In such rare instances the school should not be prevented from removing the student posing the emergency risk.

(3) A student may always elect to waive all or a part of the due process hearing rights to which the student is entitled.

(c) It was recognized that emergency situations will arise that merit immediate action by the school board.

(1) Any emergency removal of the student from the active student body will be deemed temporary until provision of a hearing affording a student all due process rights.

(2) All actions taken by a school against a student accused of violating school policy must be documented in writing for the student's record immediately after the action is taken.

(3) A school must provide a student a hearing proving the student full due process rights within 10 days of any disciplinary action. The time may be delayed only upon motion of the student and upon showing of good cause.

Section 42.7.

This section outlines the minimum due process procedures a school must provide to a student accused of school policy violations. Nothing in this section should be read as precluding a school board from providing additional protections to those enumerated in the proposed rule. If possible, the rules should be interpreted in a manner favoring the accused student.

(a) All students have the right to have a parent or guardian present during hearings for disciplinary violations. If the student is the age of majority, the student may waive the right to have a parent present. “Parent or guardian” should be read broadly to include any adult, other than boarding school personnel, who is the equivalent to a parental authority over the student, or any adult who is head of the household where the accused student primarily resides.

(b) Students have the right to be represented by an adult in addition to their parent at disciplinary proceedings. It was not intended that a student should be entitled to receive funding from the school board or the Federal government to pay for this representation. “Counsel” as used in the rule is not limited to legal counsel. Generally the person selected as “counsel” must act as a representative of the student in the disciplinary proceeding and should generally be familiar with the disciplinary process of the school board.

(c) Accused students have the right to produce and have produced witnesses and confront and examine all witnesses.

(d) A student must be provided all information concerning hearings addressing violations of school policies. While this rule does not specifically require additional school record development, the student is entitled to any records or documents that the school board makes in conjunction with the disciplinary proceeding. The right to certain records does not require

disclosure of documents otherwise privileged under attorney client privilege.

(e) A student must be given the opportunity to appeal any decision concerning violations of school possible. The group hearing the appeal must not be the group that issued the original decision.

(f) A school may not require that the student testify against himself for the purpose of finding him guilty. If, however, the student elects to so testify, then the student's statements may be used to affirm allegations of school policy violations.

(g) When a student is not found guilty of alleged violations of school policy, the student's record must not reflect the allegation. Prior allegations of school policies for which a student is not found guilty should not be used against the student in future proceedings.

Section 42.8.

This section provides objectives for consideration of victims' rights. Where possible and appropriate, the rights of the victim should be afforded consideration in hearings addressing violations of school policies. While consideration of victims' rights is an aspiration and creates no enforceable right for the victim, it was desired that schools make every effort possible to afford victims rights in disciplinary proceedings.

Section 42.9.

A school must develop a handbook and make that handbook available to students annually. Changes in school policy do not become effective for the purpose of disciplining a student under the changed policy until the student body is notified of the change in writing.

(a) The handbook must clearly explain all school policies to place all students on notice of expected conduct and actions which constitute violations of school policy.

(b) All staff must be informed of school policies to ensure that violations are properly reported and proper conduct does not subject students to unnecessary charges.

(c) Students and parents, guardians, or other persons providing primary care for students shall be given copies of the student handbook for their reference. In the case of students attending boarding schools, it is not sufficient to provide only dorm staff with the handbook; parents or other caregivers must also be provided copies.

(d) To the extent possible, students, school staff, and parents or guardians should confirm in writing receipt of the student handbook. Such practices will ensure both that schools strive to keep students, staff and others informed of school policies as well as assist the school in establishing that the student was aware of the policy allegedly violated.

VI. Part 44—Grants Under the Tribally Controlled Schools Act

In section 1127 of the Act, Congress authorized the Secretary to promulgate only rules that: (1) Are necessary to ensure compliance with the Act and (2) Comply with section 5211 of the Tribally Controlled Schools Act of 1988. The Act amended the Tribally Controlled Schools Act of 1988 by striking sections 5202 through 5212 and inserting new sections. New section 5210 specifically provides that:

The Secretary is authorized to issue rules relating to the discharge of duties specifically assigned to the Secretary in this part. For all other matters relating to the details of planning, developing, implementing, and evaluating grants under this part, the Secretary shall not issue rules.

In developing proposed rules, the Committee reviewed each section of the Tribally Controlled Schools Act to determine whether the section pertained to the discharge of the Secretary's duties. If it did, then the Committee considered whether the statutory provision was clear without the need for rules. If so, then the Committee chose not to draft rules.

At the outset, the Committee was especially mindful of Congress' Declaration of Policy found in section 5202 of The Act. The Committee used the declaration, including the recognition of the importance of self-determination, the commitment to Indian education, and the national goal and education needs.

Specifically, the Committee considered the declaration at section 5202(a), where Congress:

Recognizes that the Indian Self-Determination and Education Assistance Act was the product of the legitimate aspirations and a recognition of the inherent authority of Indian nations, was and is a crucial step positive step toward tribal and community control and that the United States has an obligation to assure maximum participation in the direction of education services so as to render the persons administering such services and the services themselves more responsive to the needs and the desires of Indian communities.

The Committee also specifically considered that Congress made the following commitment in section 5202(b) of The Act:

Congress declares its commitment to the maintenance of the Federal Government's unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children through the establishment of a meaningful Indian self-determination policy for education that will deter further perpetuation of Federal bureaucratic domination of programs.

The Committee also used Congress' declaration of a national goal of the United States in section 5202(c):

Congress declares that a national goal of the United States is to provide the resources, processes, and structure that will enable tribes and local communities to obtain the quantity and quality of educational services and opportunities that will permit Indian children (1) to compete and excel in the areas of their choices; and (2) to achieve the measure of self-determination essential to their social and economic well-being.

The Committee considered that Congress also affirmed the educational needs of Indian students in section 5202(d) of The Act when it stated:

Congress affirms (1) true self-determination in any society of people is dependent upon an education process that will ensure the development of qualified people to fulfill meaningful leadership roles; and (2) that Indian people have special and unique educational needs, including the need for programs to meet the linguistic and cultural aspirations of Indian tribes and communities; and (3) that those needs may be best met through a grant process.

Fully considering the directives of Congress, the Committee turned to each section of the Tribally Controlled Schools Act, to determine which sections needed rules.

In section 101, the Committee re-affirmed that the statute and rules principally applied to the grantee and that guidelines, manuals, and policy directives of the Bureau only applied if agreed to by the grantee. Section 102, re-affirmed that the rules do not affect existing tribal rights. Section 103 provides the eligibility requirements found in section 5203 and 5205 of the The Act.

Section 104 provides for the three methods by which a grant can be terminated. These methods are found in section 5203(f) B retrocession; 5206(c) B revocation of eligibility; and 5208(12) reassumption. Section 105 implements section 5203(f), section 106 implements section 5206(c), and section 107 implements section 5208(12).

Section 108 implements section 5207, which requires that payments be made to the grantee in two annual payments. However, the Committee is recommending that annual payments be made to all Bureau-funded schools. This section will be amended in the final rule to reflect the final rule for payments. This section also reiterates the statutory requirement that the Prompt Payment Act applies to grant payments. Section 109 implements section 5207(a)(2) regarding excess funding.

In section 5208 of the The Act, Congress specifically incorporated into the Tribally Controlled Schools Act certain sections of the Indian Self-Determination and Education Assistance Act (ISDEAA), as amended. Section 110 incorporates those sections of the 25 CFR part 900 that implement the incorporate sections of the ISDEAA. In addition, the Committee considered whether the “common-rule,” 43 CFR part 12, applied to grantees except in the construction context. The Committee examined 25 U.S.C. 2503(b)(4)(B), section 5204 of The Act, and believed that the 43 CFR part 12 does not apply to grantees. However, some members of the Committee raised concerns that without the common rule, there were no standards for financial, property, or procurement management. To address these concerns, the Committee incorporated subpart E of part 900, “Standards for Tribal or Tribal Organization Management Systems.”

Finally, section 111 reiterates that the Federal Torts Claims Act applies to grant schools.

Overall, the Committee felt that the Tribally Controlled Schools Act of 1988, as amended by the The Act, needed very few rules. The Committee was true to Congress' directive that the rules only pertain to the discharge of the Secretary's duties. Moreover, the Committee believed that if the statute was clear, no implementing rules were necessary.

VII. Part 47—Uniform Direct Funding and Support

Section 1130 of the Act specifically requires the Secretary to establish by regulation a system for the direct funding and support of all Bureau-funded schools. This system must allot funds in accordance with section 1127 of the Act. A subgroup of the committee reviewed the current rules in 25 CFR 39.50 and determined that the rules did not need any substantive changes. The subgroup put the current regulation in plain language and presented it to the committee as a whole. The committee as a whole accepted the plain language version of the uniform direct funding rules with little discussion.

VIII. Procedural Matters

Regulatory Planning and Review (E.O. 12866)

This document is a significant rule and the Office of Management and Budget (OMB) has reviewed the rule under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule deals exclusively with student rights, does not pertain to funding, and is not expected to have an effect on budgets.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule has been prepared in consultation with the U.S. Department of Education.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule spells out student rights, the procedures for their dissemination, and the procedures for implementing them. The rule does not pertain to funding and is not expected to have an effect on budgets.

(4) This rule raises novel legal or policy issues. The rule proposes entirely new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.

). Funding for Indian education programs has averaged about $350 million in grants annually over the last ten years. The “No Child Left Behind” legislation, which these proposed rules are designed to implement, will provide no additional funding, but merely reallocates current funding. Since grants redistribute wealth, they have no impact on aggregate employment and prices unless the allocation of the grant money produces incentives that result in an employment, income, or price effect in excess of $100 million annually. Although the purpose of this rule is to change the formula for distributing grant money, BIA does not have sufficient information to evaluate the extent to which the proposed regulation may change the incentives associated with new proposed formula. However, based on the new proposed formula, school districts may face incentives to report or count students differently than under the existing formula. Regardless of the extent to which incentives may shift, the Secretary believes that the changes would not result in changes in employment, income, or prices in the economy.

Costs and Benefits

The proposed formula for distributing the grant money was determined in negotiation with the grant recipients to ensure that maximum benefits are obtained at the local level. The approximate distribution of grants by instructional programs under the current distribution formula and under the proposed new formula is shown in Table 1. Although the distribution of grants under the new formula is not precisely known, the expected distribution is also shown in Table 1. Table 2 shows the effect on grants allocated by State under the current and proposed formula.

Table 1.—Effect on Grant Allocation by Program

[Percent]

Program

Approximate current allocation

Proposed formula allocation

Instructional Programs:

Basic

68.2

59.0

Exceptional Child

2.5

10.4

Bilingual

6.2

6.8

Gifted & Talented

5.6

5.5

Total Instructional

82.6

81.6

Residential Programs Basic

11.6

18.4

Intensive Residential Guidance

2.9

0.0

Exceptional Child

.1

0.0

Total Residential

17.6

18.4

Total

100.0

100.0

Table 2.—Effect on Grant Allocation by State

[Percent]

State

Approximate current allocation

Proposed formula allocation

Arizona

27.4

27.8

California

2.6

2.6

Florida

.4

.4

Iowa

.3

.2

Idaho

.2

.4

Kansas

.2

.2

Louisiana

.1

.1

Maine

.5

.5

Michigan

.5

.5

Minnesota

1.5

1.5

Mississippi

3.6

3.4

Montana

.8

.8

North Carolina

2.2

2.1

North Dakota

8.0

7.8

New Mexico

24.2

24.3

Nevada

.2

.3

Oklahoma

3.8

3.8

Oregon

1.6

1.6

South Dakota

16.7

16.5

Utah

.9

.9

Washington

2.4

2.5

Wisconsin

1.5

1.5

Wyoming

.4

.4

Total

100.0

100.0

These provisions will allow school districts to use Federal funds in a manner more consistent with their own reform strategies and priorities. While most of the benefits of the new law are conveyed by the statute, the regulations proposed through this notice could also result in cost savings, by allowing flexibility in adopting assessment systems composed entirely of locally developed and administered tests. Data limitations make it difficult to estimate the magnitude and timing of any potential cost savings. However, given the new flexibilities associated with the proposed regulation, the Secretary has concluded that these regulations are likely to have positive net benefits.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Does not have an annual effect on the economy of $100 million or more on budgets.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The rule does not pertain to funding and is not expected to have an effect on budgets. The rule is not expected to have a perceptible effect on costs or prices.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The rule does not pertain to funding and is not expected to have an effect on budgets.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights

and adapts the existing rules to comply with current law and policy. The procedures for dissemination of student rights through student handbooks are consistent with current practices. The procedures for implementing student rights through hearings and alternative dispute resolution processes are consistent with current practices. The rule is not expected to mandate additional costs on tribal governments.

Takings (E.O. 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. Nothing in the rule proposes rules of private property rights, constitutional or otherwise, or invokes the Federal condemnation power or alters any use of Federal land held in trust. The focus of this rule is civil rights and due process rights. A takings implication assessment is not required.

Federalism (E.O. 13132)

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Nothing in this rule has substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule does not implicate State government. Similar to federalist concepts, this rule leaves to local school board discretion those issues of student civil rights and due process that can be left for local school boards to address. A Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Consultation With Indian Tribes (E.O. 13175)

In accordance with Executive Order 13175, we have identified potential effects on federally recognized Indian tribes that will result from this rule. This rule will require Tribally operated schools to observe student rights and procedures spelled out in the rule. Accordingly:

(1) We have consulted with the affected tribe(s) on a government-to-government basis. The consultations have been open and candid to allow the affected tribe(s) to fully evaluate the potential effect of the rule on trust resources.

(2) We will fully consider tribal views in the final rule.

(3) We have consulted with the appropriate bureaus and offices of the Department about the political effects of this rule on Indian tribes. The Office of Indian Education Programs and the Office of the Assistant Secretary—Indian Affairs have been consulted.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.

), the Department is requesting comments on the information collection incorporated in this proposed rule. Comments on this information must be received by March 26, 2004, via facsimile or e-mail transmittal to: Desk Officer for the Department of the Interior, Office of Information and Regulatory Affairs, 202/395-6566 (facsimile) or

OIRA_DOCKET@omb.eop.gov.

Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden including the validity of the methodology and assumption used; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. The information collection will be used to enable BIA to better administer the No Child Left Behind program subject to this rulemaking. In all instances, the Department has strived to lessen the burden on the public and ask for only information that is absolutely essential to the administration of the programs affected and in keeping with the Department's fiduciary responsibility to federally recognized tribes.

Under 25 CFR part 39, OMB clearance has already been given under OMB Control Number 1076-0122 for the information required of Indian schools to document student attendance and classification for participation in certain special programs. In addition, OMB has approved certain transportation information in reporting off-reservation school mileage estimates, also in 25 CFR part 39, under Control Number 1076-0134.

A synopsis of the new information collection burdens for parts 30, 37, 39, 42, 44 and 47 is provided below. Burden is defined as the total time, effort, or financial resources expended (including any filing fees) by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency.

Estimated Burden Hours

CFR section

Number Respondents

Responses per respondent

Burden per response

(in hours)

Total annual burden/cost

30.104(a)(1), Submit Notification

6

1

1

6 hours/$72.00

30.104(b), Submit Waiver

7

1

11

77 hours/$924.00

30.106, Submit proposal for alternative AYP

20

1

1

20 hours/$240.00

30.107, Form Requirements

20

1

480

9,600 hours/$115,200.00

30.110, Submit Request for technical assistance

20

1

2

40 hours/$480.00

30.118, Submit Evidence

85

1

40

3,400 hours/$40,800.00

Totals

13,143/$157,716.00

[Note:

For purposes of this part, we recognize 184 bureau- and tribally-operated schools and peripheral dormitories. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements.]

Summary

Section 30.104(a)(1) What Is the Secretary's Definition of Adequate Yearly Progress?

Where the tribal school is in more than one State, because of reservation geographic boundaries, the tribal governing body or school board may choose the State definition it desires for “Adequate Yearly Progress.” This is realized through a written communication to the Secretary. It is estimated that there are only 6 schools within 2 tribes that would have this option to choose between or among State definitions for AYP. It is estimated that it would take the tribal governing body or school board 1 hour to complete this notification through a letter to the Secretary.

Burden hours = number of schools with this option (6) × 1 hour to send letter to the Secretary = 6 total annual burden hours at a cost of $72.00 to the public.

Section 30.104(b) What is the Secretary's Definition of Adequate Yearly Progress?

The tribal governing body or school board may seek a waiver that may include developing their own definition of AYP, or adopting or modifying an existing definition of AYP that has been accepted by the U.S. Department of Education. The average number of schools that would ask for this waiver is estimated to be not more than 7 schools. To submit this waiver request for an alternative definition of AYP, the school would take approximately 11 hours to complete.

Burden hours = 7 schools × 11 burden hours = 77 total annual burden hours at a cost of $924.00 to the public.

Section 30.106 How Does a Tribal Governing Body or School Board Propose an Alternative Definition of AYP?

The tribal governing body or the school board may decide that the Secretary's definition of AYP is otherwise inappropriate. It may then propose an alternative definition of AYP by submitting a proposal to the Secretary. The physical act of submitting the proposal would only entail a hour's time. It is estimated that only 20 schools, on average, would propose an alternative definition of AYP.

Burden hours = 20 schools × 1 burden hour = 20 total annual burden hours at a cost of $240.00 to the public.

Section 30.107 What Must a Tribal Governing Body or School Board Include in Its Alternative Definition of AYP?

This section illustrates the form requirements that a tribal governing body or school board must fulfill in completing its proposal for an alternative definition of AYP. It is estimated that it would take an average of 20 schools making such a proposal approximately 480 hours or 3 months to complete the requirements of this section.

Burden hours = 20 schools × 480 burden hours = 9,600 total annual hours at a cost of $115,200 to the public.

Section 30.110 What Is the Process for Requesting Technical Assistance To Develop an Alternative Definition of AYP?

The tribal governing body or the school board must submit a written request to the Director of OIEP if it desires to have technical assistance in developing an alternative definition of AYP. It is estimated that an average of 20 schools would be making this request, the same average of schools requesting an alternative definition of AYP, since this assistance is available. In submitting this written request, it is estimated that, at a minimum, a meeting of the tribal governing body or the school board would have to take place to discuss the request and then qualify the parameters of this assistance in a letter then sent to the Director of OIEP. It would take up to 2 hours to complete this administrative task.

Burden hours = 20 schools × 2 burden hours = 40 total annual burden hours at a cost of $480 to the public.

Section 30.118 Can a Bureau-Funded School Present Evidence Before It Is Identified for School Improvement, Corrective Action, or Restructuring?

The tribal governing body or school board may present evidence that it should not be identified for school improvement, corrective action, or restructuring. There are 184 bureau-funded schools and peripheral dormitories. Only 170 have academic programs subject to school improvement, corrective action, or restructuring. Out of the 170 bureau-operated schools, it is estimated that approximately half (85) would seek to present such evidence. To compile the evidence necessary to make its case, it is further estimated that it would take approximately 40 hours (a good work week) to fulfill this requirement.

Burden hours = 85 schools × 40 hours = 3,400 total annual burden hours for a cost of $40,800 to the public.

Estimated Burden Hours

CFR section

# Respondents

Responses per respondent

Burden per response

(in hours)

Total annual burden/cost

37.122(b), Propose Change in geographic boundaries

2

1

1

2 hours/$24.00

37.123(c), Submit tribal approval to change geographic boundaries

2

1

1

2 hours/$24.00

Totals

4/$48.00

[Note:

For purposes of this part, we recognize 184 bureau- and tribally-operated schools and peripheral dormitories. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements.]

Summary

Section 37.122(b) Once Geographic Attendance Boundaries Are Established, How Can They Be Changed?

Tribal governing bodies and school boards may change their attendance boundaries now. This rulemaking does not otherwise impact on this ability. We

have estimated, for purposes of information collection authority, that there can be approximately two such requests per year. Submitting a letter to the Secretary for this consideration would entail only 1 hour's time to effectively transmit such a letter.

Burden hours = 2 schools × 1 burden hours = 2 total annual burden hours at a cost of $24.00 to the public.

Section 37.123 How Does a Tribe Develop Proposed Geographic Attendance Boundaries or Boundary Changes?

A tribal governing body establishes its own process for developing proposed geographic attendance boundary or boundary changes. Once this has been accomplished, it must submit a document which represents that body's approval to the Secretary for consideration of such change. No tribe has ever attempted to change its attendance boundary and, consequently, no tribe has developed these in-house processes. However, for purposes of information collection authority, we have estimated that approximately two tribes could make such a request each year. This administrative activity would not entail more than 1 hour's time.

Burden hours = 2 tribes × 1 burden hour = 2 total annual burden hours at a cost of $24.00 to the public.

Estimated Burden Hours

CFR section

Number respondents

Responses per respondent

Burden per Response

(in hours)

Total annual burden/cost

39.410, Submit Certification of conflict of interests review

10

1

1.5

15 hours/$180.00

39.502, Submit request for contingency funds to ELO

30

1

1

30 hours/$360.00

Totals

45/$540.00

[Note:

For purposes of this part, we recognize 184 bureau- and tribally-operated schools and peripheral dormitories. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements.]

Summary

Section 39.410 What Qualifications Must an Audit Firm Meet To Be Considered for Auditing ISEP Administration?

It is estimated that only 10 firms would be required to submit a conflict of interest certification during any given school year for purposes of general audit. It is further estimated that this administrative task would take approximately 1.5 hours to complete.

Burden hours = 10 certified public accountant firms × 1.5 hours = 15 hours at a cost of $180.00 to the public.

Section 39.502 How Does a School Apply for Contingency Funds?

A school must submit a request to the ELO for contingency funds. From past experience, it is estimated that approximately 30 schools would make such a request. Since there is nothing more involved than submitting a written request to the ELO, it is further estimated that it would take only 1 hour to complete this administrative task.

Burden hours = 30 schools × 1 burden hour = 30 total annual burden hours at a cost of $360 to the public.

Estimated Burden Hours

CFR section

Number of respondents

Responses per

respondent

Burden per

response

(in hours)

Total anual burden/cost

42.6, Form Requirement. Provide written notice of charges

120

3

.5

180 hours/$2,160.00.

42.7, Provide copy of hearing of record

120

3

3

1,080 hours/$12,960.00.

42.9, Provide student handbook

120

1

.25

30 hours/$360.00.

Totals

1,290/$15,480.00.

[

Note:

For purposes of this part, we recognize 184 bureau- and tribally-operated schools and peripheral dormitories. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements.]

Summary

Section 42.6 What Does Due Process in a Formal Disciplinary Proceeding Include?

The student charged with any infraction of the school code which would lead to a disciplinary proceeding must receive a formal statement of such charges. This a burden accruing to tribally-operated schools. Since every school may have one infraction (some have no reported disciplinary events and some may have several events), we have used the number of tribally-operated Indian schools (120) as the number of respondents. Providing the student with charges is an administrative task that should not take longer than one-half hour to successfully complete.

Burden hours = 120 schools × 3 responses ×

1/2

burden hour = 180 total annual burden hours for a cost

to the government and/or tribal governing body or school board of $2,160.

Section 42.7 What Are a Student's Due Process Rights in a Formal Disciplinary Proceeding?

The student is entitled to a copy of the hearing of record. For transcription, photo-copying, and delivery, it is estimated that this administrative task could take as long as 3 hours to successfully complete.

Burden hours = 120 schools × 3 responses × 3 burden hours = 1,080 total annual burden hours for a cost to the government and/or tribal government body or school board of $12,960.

Section 42.9 How Must the School Communicate Individual Student Rights to Students, Parents or Guardians, and Staff?

The school must provide a handbook to the affected entities setting out the school's code of conduct. All of the existing bureau- and tribal-operated schools have such handbooks, so this information distribution concerns making the handbook available to all concerned, a relatively simple task of

1/4

hour to make copies available at a site-specific location.

Burden hours = 120 schools × .25 burden hours = 30 total annual burden hours for a cost to the government and/or tribal governing body or school board of $360.

Estimated Burden Hours

CFR section

Number of respondents

Responses per

respondent

Burden per

response

(in hours)

Total annual burden/cost

44.105, Provide written notice of retrocession

1

1

1

1 hour/$12.00

[

Note:

For purposes of this part, we recognize 184 bureau- and tribally-operated schools and peripheral dormitories. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements.]

Summary

Section 44.105 How Does a Tribal Governing Body Retrocede a Program to the Secretary?

The tribal governing body must provide written notice to BIA that it wishes to retrocede a program. This happens rarely, so we have used one respondent tribe per year as an example for information collection authority. A simple written notice, in letter or memorandum form, would only take approximately 1 hour to transmit to BIA.

Burden hours = 1 governing body × 1 burden hour = 1 total annual burden or a cost of $12.00 to the public.

Estimated Burden Hours

CFR Section

Number of respondents

Responses per

respondent

Burden per response

(in hours)

Total annual burden/cost

47.5, Submit quarterly report to school board

120

4

3

1,440 hours/$17,280

47.7, Notice of appeal

120

1

1

120 hours/$1,440

47.9, Form Requirements, Financial Plan

120

1

2

240 hours/$2,880

47.10, Notice of Action on Financial Plan

120

1

1

120 hours/$1,440

Totals

1920/$23,040

[

Note:

For purposes of this part, we recognize 120 bureau- and tribal-operated Indian schools. From this number we have extrapolated the number of likely respondents per information collection requirement. The cost of reporting and recordkeeping by the public is estimated to be approximately $12/hour. We have used this figure as a medium figure that would indicate the cost of having a form (or form requirements) completed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus time spent on the activity, and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this part's information collection requirements. For purposes of this part only, we have used the number of tribally operated schools (120) as the number of respondents.]

Summary

Section 47.5 What Is the School Supervisor Responsible For?

The school supervisor must report at least quarterly (4 responses per year) to the local school board on the amounts spent, obligated, and currently remaining in funds budgeted for each program in the local financial plan. In addition, he must maintain expenditure records in accordance with financial planning system procedures. It is estimated that this would take approximately 3 hours to complete successfully.

Burden hours = 120 schools × 1 supervisor × 4 responses × 3 burden hours = 1,440 total annual burden hours or a cost to the public of $17,280.00.

Section 47.7 What Are the Expenditures Limitations for Bureau-Operated Schools?

If a Bureau-operated school and OIEP region or Agency support services staff disagree over expenditures, the Bureau-operated school must appeal to the Director for a decision. This appeal would take the form of a memorandum and would take approximately 1 hour to complete successfully.

Burden hours = 120 schools × 1 burden hour = 120 total annual burden or a cost of $1,440.00 to the public.

Section 47.9 What Are the Minimum Requirements for the Local Educational Financial Plan?

This is a form requirement for meeting the minimum standards of a educational financial plan. All schools would have to comply with this standard and it is estimated that it would take approximately 2 hours to complete this planning document.

Burden hours = 120 schools × 2 burden hours = 240 total annual burden hours at a cost of $2,880.00 to the public.

Section 47.10 How Is the Local Educational Financial Plan Developed?

The supervisor of each school must supervise the disposition of the tentative allotment and express acceptance or otherwise to the ELO in a timely fashion. This administrative task would take approximately 1 hour to convey such disposition.

Burden hours = 120 schools × 2 burden hours = 240 total annual burden hours or a cost of $1,440.00 to the public.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.

Clarity of This Regulation

Executive Order 12866 requires each agency to write rules that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing,

etc.

) aid or reduce its clarity?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example: § 42.2 What rights do individual students have?)

(5) Is the description of the rule in the

SUPPLEMENTARY INFORMATION

section of the preamble helpful in understanding the proposed rule?

(6) What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address:

Exsec@ios.doi.gov.

Public Comment Solicitation

Although this rule is published by the Bureau of Indian Affairs, the Bureau of Land Management is processing comments under agreement with BIA. If you wish to comment on this proposed rule, you may submit your comments by any one of several methods.

(1) You may mail comments to Director (630), Bureau of Land Management, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, Attention: RIN 1076-AE49.

(2) You may submit comments electronically by direct Internet response to either

www.blm.gov/nhp/news/regulatory/index.html,

or

http://www.blm.gov.

(3) You may hand-deliver comments to 1620 L Street, NW., Room 401, Washington, DC 20036.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record. We will honor the request to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. You should submit comments on the information collections in the proposed rule to: Interior Desk Officer (1076-AE49), Office of Information and Regulatory Affairs, 202/395-6566 (facsimile); e-mail:

oira_docket@omb.eop.gov.

You may submit comments until April 26, 2004, but should submit them by March 26, 2004, in order to be assured of consideration, because OMB may approve the information collections after 30 days.

List of Subjects

25 CFR Parts 30, 37, 39, 44, and 47

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

25 CFR Part 42

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

Dated: February 4, 2004.

David W. Anderson,

Assistant Secretary—Indian Affairs.

For the reasons given in the preamble, the Bureau of Indian Affairs proposes to amend parts 30, 37, 39, 42, 44, 47 of title 25 of the Code of Federal Regulations as follows:

1. New part 30 is added to read as follows:

PART 30—ADEQUATE YEARLY PROGRESS

Sec.

30.100

What is the purpose of this part?

30.101

What definitions apply to terms in this part?

Subpart A—Defining Adequate Yearly Progress

30.102

Does the law require the Secretary of Interior to develop a definition of AYP for bureau-funded schools?

30.103

Did the Committee consider a separate Bureau definition of AYP?

30.104

What is the Secretary's definition of Adequate Yearly Progress?

Alternative Definition of AYP

30.105

Can a tribal governing body or school board use another definition of AYP?

30.106

How does a tribal governing body or school board propose an alternative definition of AYP?

30.107

What must a tribal governing body or school board include in its alternative definition of AYP?

30.108

May an alternative definition of AYP use parts of a State's definition?

Technical Assistance

30.109

Will the Secretary provide assistance in developing an alternative AYP definition?

30.110

What is the process for requesting technical assistance to develop an alternative definition of AYP?

30.111

When should the tribal governing body or school board request technical assistance?

Approval of Alternative Definition

30.112

How long does the Secretary have to review an alternative definition?

30.113

What is the process the Secretary uses to review and approve an alternative definition of AYP?

Subpart B—Assessing Adequate Yearly Progress

30.114

Which students must be assessed?

30.115

Which students' performance data must be included for purposes of AYP?

30.116

If a school fails to achieve its objectives, what other methods may it use to determine whether it made AYP?

Subpart C—Failure To Make Adequate Yearly Progress

30.117

What happens if a bureau-funded school fails to make AYP?

30.118

Can a bureau-funded school present evidence before it is identified for school improvement, corrective action or restructuring?

30.119

Who is responsible for implementing required remedial actions at a bureau-funded school identified for school improvement, corrective action or restructuring?

30.120

Are schools exempt from school choice and supplemental services when identified for school improvement, corrective action, and restructuring?

30.121

What funds are available to assist schools identified for school improvement, corrective action, or restructuring?

30.122

Must the Bureau assist a school identified for school improvement, corrective action, or restructuring?

30.123

What is the Bureau's role in assisting bureau-funded schools to make AYP?

30.124

Will the Department of Education provide funds for schools that fail to meet AYP?

30.125

What happens if a State refuses to allow a school access to the State assessment?

Subpart D—Responsibilities and Accountability

30.126

What are the Bureau's reporting responsibilities?

30.127

How is the Bureau accountable to the Department of Education for education funds and performance?

30.150

Information collection.

Authority:

Pub. L. 107-11.

§ 30.100

What is the purpose of this part?

This part establishes for schools receiving Bureau funding a definition of “Adequate Yearly Progress” (AYP). Nothing in this part:

(a) Diminishes the Secretary's trust responsibility for Indian education or any statutory rights in law;

(b) Affects in any way the sovereign rights of tribes; or

(c) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.

§ 30.101

What definitions apply to terms in this part?

OIEP

means the Office of Indian Education Programs in the Bureau of Indian Affairs.

School

means a school funded by the Bureau of Indian Affairs.

Secretary

means the Secretary of the Interior or a designated representative.

Subpart A—Defining Adequate Yearly Progress

§ 30.102

Does the law require the Secretary of the Interior to develop a definition of AYP for bureau-funded schools?

Yes, through negotiated rulemaking. In developing the Secretary's definition of adequate yearly progress (AYP), the No Child Left Behind Negotiated Rulemaking Committee (Committee) considered a variety of options. In choosing the definition in § 30.103, the Committee in no way intended to diminish the Secretary's trust responsibility for Indian education or any statutory rights in law. Nothing in this part:

(a) Affects in any way the sovereign rights of tribes; or

(b) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.

§ 30.103

Did the Committee consider a separate Bureau definition of AYP?

Yes, the Committee considered having the Bureau of Indian Affairs develop a separate Bureau definition of AYP. For a variety of reasons, the Committee reached consensus on the definition in § 30.104. This is in no way intended to diminish the United States' trust responsibility for Indian education nor is it intended to give states authority over Bureau-Funded schools.

§ 30.104

What is the Secretary's definition of Adequate Yearly Progress?

The Secretary defines Adequate Yearly Progress as follows. The definition meets the requirements in section 1111(b) of the Act.

(a) Until an alternative definition of AYP is proposed by the tribal governing body or school board and approved by the Secretary, the definition of AYP is that of the State where the school is located.

(1) If the geographic boundaries of the school include more than one State, the tribal governing body or school board may choose the State definition it desires. Such decision shall be communicated to the Secretary in writing.

(2) This section does not mean that the school is under the jurisdiction of the State for any purpose, rather a reference to the State is solely for the purpose of using the State's assessment, curriculum, academic standards, and definition of AYP.

(3) The use of the State's definition of AYP does not diminish or alter the Federal Government's responsibility for Indian education.

(b) School boards or tribal governing bodies may seek a waiver that may include developing their own definition of AYP, or adopting or modifying an existing definition of AYP that has been accepted by the Department of Education. The Secretary is committed to providing technical assistance to a school, or a group of schools, to develop an alternative definition of AYP.

Alternative Definition of AYP

§ 30.105

Can a tribal governing body or school board use another definition of AYP?

Yes. A tribal governing body or school board may waive all or part of the Secretary's definition of AYP and propose an alternative definition under § 30.106.

§ 30.106

How does a tribal governing body or school board propose an alternative definition of AYP?

If a tribal governing body or school board decides that the definition of AYP in § 30.104 is inappropriate, it may decide to waive all or part of the definition. Within 60 days of the decision to waive, the tribal governing body or school board must submit to the Secretary a proposal for an alternative definition of AYP. The proposal must be consistent with section 1111(b) of the Act.

§ 30.107

What must a tribal governing body or school board include in its alternative definition of AYP?

(a) The alternative definition of AYP must comply with the requirements of section 1111(b) of the Act, which include the following:

(1) Demonstrate that the school has adopted challenging academic standards;

(2) Demonstrate that the school has an effective accountability system that ensures that the school or schools will make adequate yearly progress.

(b) The alternative definition of AYP must:

(1) Apply the same high standards of academic achievement to all students;

(2) Be statistically valid and reliable;

(3) Result in continuous and substantial academic improvement for all students;

(4) Measure the progress of all students based on a high-quality assessment system that includes, at a minimum, academic assessments in mathematics, reading or language arts and science and that meets the requirements of paragraph (c) of this section;

(5) Establish a starting point;

(6) Create timelines for adequate yearly progress;

(7) Establish measurable objectives;

(8) Include intermediate goals for annual measurable progress; and

(9) Ensure annual improvement for the school.

(c) The measurement required by paragraph (b)(4) of this section must meet both of the following criteria.

(1) The measurement must include separate measurable annual objectives for continuous and substantial improvement for (unless disaggregation of data cannot yield statistically reliable information):

(i) The achievement of all students; and

(ii) The achievement of economically disadvantaged students; students from major racial or ethnic groups, students with disabilities, and students with limited English proficiency.

(2) The measurement must include graduation rates and at least one other academic indicator for schools that do not have a 12th grade (but may include more than one other academic indicator).

§ 30.108

May an alternative definition of AYP use parts of a State's definition?

Yes, a tribal governing body or school board may take part of the State's definition and propose to waive the remainder. The proposed alternative definition of AYP must, however, include both the parts of the State's AYP adopted and those parts the tribal governing body or school board is proposing to change.

Technical Assistance

§ 30.109

Will the Secretary provide assistance in developing an alternative AYP definition?

Yes, the Secretary through the Bureau, shall provide technical assistance either directly or through contract to the tribal governing body or the school board in developing an alternative AYP definition. A tribal governing body or school board needing assistance must submit a request to the Director of OIEP under § 30.110. In providing assistance, the Secretary may consult with the Secretary of Education and may use funds supplied by the Secretary of Education in accordance with section 6111 of the Act.

§ 30.110

What is the process for requesting technical assistance to develop an alternative definition of AYP?

(a) The tribal governing body or school board requesting technical assistance to develop an alternative definition of AYP must submit a written request to the Director of OIEP, specifying the form of assistance it requires.

(b) The Director of OIEP must acknowledge receipt of the request for technical assistance within 10 days of receiving the request.

(c) No later than 30 days after receiving the original request, the Director of OIEP will identify a point of contact. This contact will immediately begin working with the tribal governing body or school board to jointly develop the specifics of the technical assistance, including identifying the form, substance, and timeline for the assistance.

§ 30.111

When should the tribal governing body or school board request technical assistance?

In order to maximize the time the tribal governing body or school board has to develop an alternative definition of AYP and to provide full opportunity for technical assistance, it is recommended that the tribal governing body or school board request technical assistance before formally notifying the Secretary of its intention to waive the Secretary's definition of AYP.

Approval of Alternative Definition

§ 30.112

How long does the Secretary have to review an alternative definition?

After receiving a completed proposed alternative definition of AYP, the Secretary has 90 days to review and approve or disapprove the definition.

§ 30.113

How does the Secretary review and approve an alternative definition of AYP?

(a) The tribal governing body or school board submits a proposed alternative definition of AYP to the Director, OIEP within 60 days of its decision to waive the Secretary's definition.

(b) Within 30 days of receiving a proposed alternative definition of AYP, OIEP notifies the tribal governing body or the school board whether the proposed alternative definition is complete.

(c) If the proposed alternative definition is incomplete, OIEP provides the tribal governing body or school board with technical assistance to complete the proposed alternative definition of AYP, including identifying what additional items are necessary.

(d) If the proposed alternative definition of AYP is determined to be complete, the Department of Interior may notify the Department of Education that it has received a proposed alternative definition of AYP.

(e) The Secretary has 90 days from the date OIEP receives a completed proposed alternative definition of AYP to determine whether the alternative definition meets the requirements of section 1111(b) of the Act.

(f) The Secretary reviews the proposed alternative definition of AYP to determine whether it is consistent with the requirements of section 1111(b) of the Act. This review must take into account the unique circumstances and needs of the schools and students.

(g) The Secretary shall approve the alternative definition of AYP if it is consistent with the requirements of section 1111(b) of the Act, taking into consideration the unique circumstances and needs of schools and students.

(h) If the Secretary approves the alternative definition of AYP:

(1) The Department shall promptly notify the tribal governing body or school board; and

(2) The alternate definition of AYP will become effective at the start of the following school year.

(i) The Department will disapprove the alternative definition of AYP if it is not consistent with the requirements of section 1111(b) of the Act. If the Department disapproves the definition, it shall, within 90 days of receiving the completed proposed alternative definition, notify the tribal governing body or school board of the following:

(1) That the definition is disapproved; and

(2) The reasons why the proposed alternative definition does not meet the requirements of section 1111(b) of the Act.

(j) If the Department denies a proposed definition under paragraph (i) of this section, it shall provide technical assistance to overcome the basis for the denial.

Subpart B—Assessing Adequate Yearly Progress

§ 30.114

Which students must be assessed?

All students in grades three through eight and one grade in high school who are enrolled in a bureau-funded school must be assessed.

§ 30.115

Which students' performance data must be included for purposes of AYP?

The performance data of all students in grades three through eight and one grade in grades ten through twelve who are enrolled in a bureau-funded school for a full academic year must be included for purposes of AYP. “Full academic year” must be defined by the Secretary or by an approved alternative definition of AYP.

§ 30.116

If a school fails to achieve its academic performance objectives, what other methods may it use to determine whether it made AYP?

If a school fails to achieve its academic performance objectives, there are two other methods it may use to determine whether it made AYP

(a)

Method A—“Safe Harbor.”

Under “safe harbor,” the following requirements must be met:

(1) In each group that does not achieve the school's academic performance objectives, the percentage of students who were below the “proficient” level of academic achievement decreased by 10 percent from the proceeding school year; and

(2) The students in that group made progress on one or more of the academic indicators; and

(3) The 95 percent assessment participation rate requirement is met.

(b)

Method B—Uniform Averaging Procedure.

A school may use uniform averaging. Under this procedure, the school may average data from the school year with data from one or two school years immediately preceding that school year and determine if the resulting average makes AYP.

Subpart C—Failure To Make Adequate Yearly Progress

§ 30.117

What happens if a bureau-funded school fails to make AYP?

Consecutive yrs of failing to make AYP in same academic subject

Status

Action required by entity operating school

1st year of failing AYP

No status change

Analyze AYP Data and consider consultation with outside experts.

2nd consecutive year of failing AYP

School improvement

For the next academic year, develop a plan or revise an existing plan for school improvement in consultation with parents, school staff and outside experts.

3rd consecutive year of failing AYP

School Improvement, year two

Continue revising or modifying the plan for school improvement in consultation with parents, school staff and outside experts.

4th consecutive year of failing AYP

Corrective Action, year one

Implement at least one of the six corrective actions steps found in section 1116(b)(7)(c)(iv) of the Act.

5th consecutive year of failing AYP

Planning to Restructure

Prepare a restructuring plan and make arrangements to implement the plan.

6th consecutive year of failing AYP

Restructuring

Implement the restructuring plan no later than the beginning of the school year following the year in which it developed the plan.

7th consecutive year (and beyond) of failing AYP

Restructuring

Continue restructuring until AYP is met for two consecutive years.

§ 30.118

Can a bureau-funded school present evidence before it is identified for school improvement, corrective action, or restructuring?

Yes. The Bureau must give such a school the opportunity to review the data and present evidence as set out in section 1116(b)(2) of the Act.

§ 30.119

Who is responsible for implementing required remedial actions at a bureau-funded school identified for school improvement, corrective action or restructuring?

(a) For a Bureau-operated school, implementation of remedial actions is the responsibility of the Bureau of Indian Affairs.

(b) For a tribally-operated contract school or grant school, implementation of remedial actions is the responsibility of the school board of the school.

§ 30.120

Are Bureau-funded schools exempt from school choice and supplemental services when identified for school improvement, corrective action, and restructuring?

Yes, bureau-funded schools are exempt from public school choice and supplemental services when identified for school improvement, corrective action, and restructuring

§ 30.121

What funds are available to assist schools identified for school improvement, corrective action, or restructuring?

From fiscal year 2004 to fiscal year 2007, the bureau will reserve 4 percent of its Title I allocation to assist Bureau-funded schools identified for school improvement, corrective action, and restructuring.

(a) The bureau will allocate at least 95 percent of funds under this section to bureau-funded schools identified for school improvement, corrective action, and restructuring to carry out those schools' responsibility under section 1116(b) of the Act. With the approval of the school board the bureau may directly provide for the remedial activities or arrange for their provision through other entities such as school support teams or educational service agencies.

(b) In allocating funds under this section, the Bureau will give priority to schools that:

(1) Are the lowest-achieving schools;

(2) Demonstrate the greatest need for funds; and

(3) Demonstrate the strongest commitment to ensuring that the funds enable the lowest-achieving schools to meet progress goals in the school improvement plans.

(c) Funds reserved under this section must not decrease total funding for all schools below the level for the preceding fiscal year.

(d) The Bureau will publish in the

Federal Register

a list of schools receiving funds under this section.

§ 30.122

Must the Bureau assist a school it identified for school improvement, corrective action, or restructuring?

Yes, if a bureau-funded school is identified for school improvement, corrective action, or restructuring, the Bureau must provide technical or other assistance described in sections 1116(b)(4) and 1116(g)(3) of the No Child Left Behind Act.

§ 30.123

What is the Bureau's role in assisting bureau-funded schools to make AYP?

The Bureau must provide support to all bureau-funded schools to assist them in achieving AYP. This includes technical assistance and other forms of support.

§ 30.124

Will the Department of Education provide funds for schools that fail to meet AYP?

To the extent that Congress appropriates other funds to assist schools not meeting AYP, the Bureau will apply to the Department of Education for these funds.

§ 30.125

What happens if a State refuses to allow a school access to the State assessment?

(a) The Department will work directly with State officials to assist schools in obtaining access to the State's assessment. This can include direct communication with the Governor of the State. A bureau-funded school may,

if necessary, pay a State for access to its assessment tools and scoring services.

(b) If a State does not provide access to the State's assessment, the bureau-funded school must submit a waiver for an alternative definition of AYP.

Subpart D—Responsibilities and Accountability

§ 30.126

What are the Bureau's reporting responsibilities?

The Bureau has the following reporting responsibilities to the Department of Education, appropriate committees of Congress, and the public.

(a) In order to provide information about annual progress, the Bureau must obtain from all bureau-funded schools the results of assessments administered for all tested students, special education students, students with limited English proficiency, and disseminate such results in an annual report.

(b) The Bureau must identify each school that did not meet AYP in accordance with the school's AYP definition.

(c) Within its annual report to Congress, the Secretary shall include all of the reporting requirements of section 1116 (g)(5) of the Act.

§ 30.127

How is the Bureau accountable to the Department of Education for education funds and performance?

The Bureau is accountable for the funds it receives from the Department of Education under Title I, Part A of the Act and its performance through an agreement with the Department of Education developed in consultation with Indian tribes.

§ 30.150

Information collection.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.

) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part involves collections of information subject to the PRA in §§ 30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These collections have been approved by OMB under control number [to be determined].

2. New part 37 is added to read as follows:

PART 37—GEOGRAPHIC BOUNDARIES

Sec.

37.100

What is the purpose of this part?

37.101

What do the terms used in this part mean?

37.102

How is this part organized?

37.103

Information collection.

Subpart A—All Schools

37.110

Who determines geographic attendance areas?

37.111

What role does a tribe have in issues relating to school boundaries?

37.112

Must each school have a geographic attendance boundary?

Subpart B—Day Schools, On-Reservation Boarding Schools, and Peripheral Dorms

37.120

How does this part affect current geographic attendance boundaries?

37.121

Who establishes geographic attendance boundaries under this part?

37.122

Once geographic attendance boundaries are established, how can they be changed?

37.123

How does a tribe develop proposed geographic attendance boundaries or boundary changes?

37.124

How are boundaries established for a new school or dorm?

37.125

Can an eligible student living off a reservation attend a school or dorm?

Subpart C—Off-Reservation Boarding Schools

37.130

Who establishes boundaries for Off-Reservation Boarding Schools?

37.131

Who may attend an ORBS?

Authority:

Pub. L. 107-110.

§ 37.100

What is the purpose of this part?

(a) This part:

(1) Establishes procedures for confirming, establishing, or revising attendance areas for each Bureau-funded school;

(2) Encourages consultation with and coordination between and among all agencies (school boards, tribes, and others) involved with a student's education; and

(3) Defines how tribes may develop policies regarding setting or revising geographic attendance boundaries, attendance, and transportation funding for their area of jurisdiction.

(b) The goals of the procedures in this part are to:

(1) Provide stability for schools;

(2) Assist schools to project and to track current and future student enrollment figures for planning their budget, transportation, and facilities construction needs;

(3) Adjust for geographic changes in enrollment, changes in school capacities, and improvement of day school opportunities; and

(4) Avoid overcrowding or stress on limited resources.

§ 37.101

What do the terms used in this part mean?

Geographic attendance area

means a physical land area that is served by a Bureau-funded school.

Geographic attendance boundary

means a line of demarcation that clearly delineates and describes the limits of the physical land area that is served by a Bureau-funded school.

Secretary

means the Secretary of the Interior or a designated representative.

§ 37.102

How is this part organized?

This part is divided into three subparts. Subpart A applies to all bureau-funded schools. Subpart B applies only to day schools, on-reservation boarding schools, and peripheral dorms—in other words, to all bureau-funded schools except off-reservation boarding schools. Subpart C applies only to off-reservation boarding schools (ORBS).

§ 37.103

Information collection.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.

) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part involves collections of information subject to the PRA in §§ 37.122(b), and 37.123(c). These collections have been approved by OMB under control number [to be determined].

Subpart A—All Schools

§ 37.110

Who determines geographic attendance areas?

The Tribal governing body or the Secretary determines geographic attendance areas.

§ 37.111

What role does a tribe have in issues relating to school boundaries?

A tribal governing body may:

(a) Establish and revise geographical attendance boundaries for all but ORB schools,

(b) Authorize a school to provide transportation for students who are members of the tribe attending schools outside the geographic attendance area in which they live.

§ 37.112

Must each school have a geographic attendance boundary?

Yes. The Secretary must ensure that each school has a geographic area boundary.

Subpart B—Day Schools, On-Reservation Boarding Schools, and Peripheral Dorms

§ 37.120

How does this part affect current geographic attendance boundaries?

The currently established geographic attendance boundaries of day schools, on-reservation boarding schools, and peripheral dorms remain in place unless the tribal governing body revises them.

§ 37.121

Who establishes geographic attendance boundaries under this part?

(a) If there is only one day school, on-reservation boarding school, or peripheral dorm within a reservation's boundaries, the Secretary will establish the reservation boundary as the geographic attendance boundary;

(b) When there is more than one day school, on-reservation boarding school, or peripheral dorm within a reservation boundary, the Tribe may choose to establish boundaries for each;

(c) If a Tribe does not establish boundaries under paragraph (b) of this section, the Secretary will do so.

§ 37.122

Once geographic attendance boundaries are established, how can they be changed?

(a) The Secretary can change the geographic attendance boundaries of a day school, on-reservation boarding school, or peripheral dorm only after:

(1) Notifying the Tribe at least 6 months in advance; and

(2) Giving the Tribe an opportunity to suggest different geographical attendance boundaries.

(b) A tribe may ask the Secretary to change geographical attendance boundaries by writing a letter to the Director of the Office of Indian Education Programs, explaining the tribe's suggested changes. The Secretary must consult with the affected tribes before deciding whether to accept or reject a suggested geographic attendance boundary change.

(1) If the Secretary accepts the Tribe's suggested change, the Secretary must publish the change in the

Federal Register

.

(2) If the Secretary rejects the Tribe's suggestion, the Secretary will explain in writing to the Tribe why the suggestion either:

(i) Does not meet the needs of Indian students to be served; or

(ii) Does not provide adequate stability to all affected programs.

§ 37.123

How does a tribe develop proposed geographic attendance boundaries or boundary changes?

(a) The Tribal governing body establishes a process for developing proposed boundaries or boundary changes. This process may include consultation and coordination with all entities involved in student education.

(b) The Tribal governing body may delegate the development of proposed boundaries to the relevant school boards. The boundaries set by the school boards must be approved by the Tribal governing body.

(c) The Tribal governing body must send the proposed boundaries and a copy of its approval to the Secretary.

§ 37.124

How are boundaries established for a new school or dorm?

Geographic attendance boundaries for a new day school, on-reservation boarding school, or peripheral dorm must be established by either:

(a) The tribe; or

(b) If the tribe chooses not to establish boundaries, the Secretary.

§ 37.125

Can an eligible student living off a reservation attend a school or dorm?

Yes. An eligible student living off a reservation can attend a day school, on-reservation boarding school, or peripheral dorm.

Subpart C—Off-Reservation Boarding Schools

§ 37.130

Who establishes boundaries for Off-Reservation Boarding Schools?

The Secretary or the Secretary's designee, in consultation with the affected Tribes, establishes the boundaries for off-reservation boarding schools (ORBS).

§ 37.131

Who may attend an ORBS?

Any student is eligible to attend an ORBS.

3. Part 39 is revised to read as follows:

PART 39—THE INDIAN SCHOOL EQUALIZATION PROGRAM

Subpart A—General

Sec.

39.1

What is the purpose of this part?

39.2

What are the definitions of terms used in this part?

39.3

Information collection.

Subpart B—Indian School Equalization Formula

39.100

What is the Indian School Equalization Formula?

39.101

Does ISEF assess the actual cost of school operations?

Base and Supplemental Funding

39.102

What is included in base funding?

39.103

What are the factors used to determine base funding?

39.104

How must a school's base funding provide for students with special needs?

39.105

Are additional funds available for special education?

39.106

Who is eligible for special education funding?

39.107

Are schools allotted supplemental funds for special costs?

Gifted and Talented Programs

39.110

Can ISEF funds be distributed for the use of gifted and talented students?

39.111

What does the term gifted and talented mean?

39.112

What is the limit on the number of students who are gifted and talented?

39.113

What are the special accountability requirements for the gifted and talented program?

39.114

How does a school receive funding for gifted and talented students?

39.115

How are eligible students identified and nominated?

39.116

How does a school determine who receives gifted and talented services?

39.117

How does a school provide gifted and talented services for a student?

39.118

How does a student receive talented and gifted services in subsequent years?

39.119

When must a student leave a gifted and talented program?

39.120

How are gifted and talented services provided?

39.121

What is the WSU for gifted and talented students?

Language Development Programs

39.130

Can ISEF funds be used for Language Development Programs?

39.131

What is a Language Development Program?

39.132

Can a school integrate Language Development Programs into its regular instructional program?

39.133

Who decides how Language Development funds can be used?

39.134

How does a school identify a Limited English Proficient student?

39.135

What services must be provided to an LEP student?

39.136

What is the WSU for Language Development programs?

39.137

May schools operate a language development program without a specific appropriation from Congress?

Small School Adjustment

39.140

How does a school qualify for a Small School Adjustment?

39.141

What is the amount of the Small School Adjustment?

39.143

What is a small high school?

39.144

What is the small high school adjustment?

39.155

Can a school receive both a small school adjustment and a small high school adjustment?

39.156

Is there an adjustment for small residential programs?

Geographic Isolation Adjustment

39.160

Does ISEF provide supplemental funding for extraordinary costs related to a school's geographic isolation?

Subpart C—Administrative Procedures, Student Counts and Verifications

39.200

What is the purpose of the Indian School Equalization Formula?

39.201

Does ISEF reflect the actual cost of school operations?

39.202

What are the definitions of terms used in this subpart?

39.203

How does OIEP calculate ADM?

39.204

How does OIEP calculate ISEF?

39.205

How does OIEP calculate the value of one WSU?

39.206

How does OIEP determine a school's funding for the upcoming school year?

39.207

How are ISEP funds distributed?

39.208

When may a school count a student for membership purposes?

39.209

When must a school drop a student from its membership?

39.210

What other categories of students can a school count for membership purposes?

39.211

Can a student be counted as enrolled in more than one school?

39.212

Will the Bureau fund children being home schooled?

39.213

What are the minimum number of instructional hours required in order to be considered a full-time educational program?

39.214

Can a school receive funding for any part-time students?

Residential Programs

39.215

How does ISEF fund residential programs?

39.216

How are students counted for the purpose of funding residential services?

39.217

Are there different formulas for different levels of residential services?

39.218

What happens if a residential program does not maintain residency levels required by this part?

39.219

What reports must residential programs submit to comply with this rule?

Phase-In Period

39.220

How will the provisions of this subpart be phased in?

Subpart D—Accountability

39.400

What is the purpose of this subpart?

39.401

What definitions apply to terms used in this subpart?

39.402

What are the accountability measures under ISEP?

39.403

What certification is required?

39.404

What is the certification and verification process?

39.405

How will verifications be conducted?

39.406

What documentation must the school maintain for additional services it provides?

39.407

How long must a school maintain records?

39.408

What are the responsibilities of administrative officials?

39.409

How does the OIEP Director ensure accountability?

39.410

What qualifications must an audit firm meet to be considered for auditing ISEP administration?

39.411

How will the auditor report its findings?

39.412

What sanctions apply for failure to comply with this part?

39.413

Can a school appeal the verification of the count?

Subpart E—Contingency Fund

39.500

What emergency and contingency funds are available?

39.501

What is an emergency or unforeseen contingency?

39.502

How does a school apply for contingency funds?

39.503

How can a school use contingency funds?

39.504

May Contingency Funds be carried over to a subsequent fiscal year?

39.505

What are the reporting requirements for the use of the contingency fund?

Subpart F—School Board Training

39.600

Are Bureau-operated school board expenses funded by ISEP limited?

39.601

Is school board training for Bureau-operated schools considered a school board expense subject to the limitation?

39.602

Can Grant and Contract schools spend ISEP funds for school board expenses, including training?

39.603

Is school board training required for all Bureau-funded schools?

39.604

Is there a separate weight for school board training at Bureau-operated schools?

Subpart G—Transportation

39.700

What is the purpose of this part?

39.701

What definitions apply to terms used in this subpart?

Eligibility for Funds

39.702

Can a school receive funds to transport residential students using commercial transportation?

39.703

What ground transportation costs are covered for students traveling by commercial transportation?

39.704

Are schools eligible for other funds to transport residential students?

39.705

Are schools eligible for other funds to transport special education students?

39.706

Are peripheral dormitories eligible for day transportation funds?

39.707

Which student transportation miles are not eligible for ISEP transportation funding?

39.708

Are non-ISEP eligible children eligible for transportation funding?

Calculating Transportation Miles

39.710

How does a school calculate annual bus transportation miles for day students?

39.711

How does a school calculate annual bus transportation miles for residential students?

Reporting Requirements

39.720

Why are there different reporting requirements for transportation data?

39.721

What transportation information must off-reservation boarding schools report?

39.722

What transportation information must day schools or on-reservation boarding schools report?

Miscellaneous Provisions

39.730

Which standards must student transportation vehicles meet?

39.731

Can transportation time be used as instruction time for day school students?

39.732

How does OIEP allocate transportation funds to schools?

Subpart H—Determining the Amount Necessary To Sustain an Academic or Residential Program

39.801

What is the formula to determine the amount necessary to sustain a school's academic or residential program?

39.802

What is the Student Unit value in the formula?

39.803

What is a Weighted Student Unit in the formula?

39.804

How is the SUIV calculated?

39.805

What was the student unit for Instruction value for the school year 1999-2000?

39.806

How is the SURV calculated?

39.807

How will the Student Unit Value be adjusted annually?

39.808

What definitions apply?

Authority:

25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110.

§ 39.1

What is the purpose of this part?

This part provides for the uniform direct funding of BIA-operated and tribally operated day schools, boarding schools, and dormitories. This part applies to all schools, dormitories, and administrative units that are funded through the Indian School Equalization Program of the Bureau of Indian Affairs.

§ 39.2

What are the definitions of terms used in this part?

Agency

means an organizational unit of the Bureau which provides direct services to the governing body or bodies and members of one or more specified Indian Tribes. The term includes Bureau Area Offices only with respect to off-reservation boarding schools administered directly by such Offices.

Agency school board

means a body, the members of which are appointed by the school boards of the schools located within such agency, and the number of such members shall be determined by the Director in consultation with the affected tribes, except that, in Agencies serving a single school, the school board of such school shall fulfill these duties.

Assistant Secretary

means the Assistant Secretary of Indian Affairs, Department of the Interior, or his or her designee.

Average Daily Membership (ADM)

means the aggregated ISEP-eligible membership of a school for a school year, divided by the number of school days in the school's submitted calendar.

Base or base unit

means both the weight or ratio of 1.0 and the dollar value annually established for that weight or ratio which represents students in grades 4 through 8 in a typical instructional program.

Basic program

means the instructional program provided all students at any age level exclusive of any supplemental programs which are not provided to all students in day or boarding schools.

Basic transportation miles

means the daily average of all bus miles logged for round trip home-to-school transportation of day students.

Director

means the Director of the Office of Indian Education Programs in the Bureau of Indian Affairs or a designee.

Education Line Officer

means the Bureau official in charge of Bureau education programs and functions in an Agency who reports to the Director.

Eligible Indian student means a student who:

(1) Is a member of, or is at least one-fourth degree Indian blood descendant of a member of, a tribe that is eligible f

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