Implementation of the No Child Left Behind Act of 2001
Federal RegisterApr 28, 2005
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 30, 37, 39, 42, 44, and 47
RIN 1076-AE49
Implementation of the No Child Left Behind Act of 2001
AGENCY:
Bureau of Indian Affairs, Interior.
ACTION:
Final rule.
SUMMARY:
This final rule addresses six areas involving Indian education: Defining adequate yearly progress; establishing geographic attendance areas for Bureau of Indian Affairs-funded schools (Bureau-funded schools); establishing a formula for the minimum amount necessary to fund Bureau-funded schools; establishing a system of uniform direct funding and support for Bureau-operated schools; providing guidelines to ensure the Constitutional and civil rights of Indian students; and establishing a method for administering grants to tribally controlled schools. The rule implements the provisions of the No Child Left Behind Act of 2001.
DATES:
Effective Date:
May 31, 2005.
FOR FURTHER INFORMATION CONTACT:
Catherine Freels, DOI Office of the Solicitor, 505 Marquette Avenue NW., Suite 1800, Albuquerque, NM 87102, phone 505-248-5600.
SUPPLEMENTARY INFORMATION:
Contents of the
SUPPLEMENTARY INFORMATION
section:
I. Background
II. Public Comments—General
III. Comments on Part 30—Adequate Yearly Progress
IV. Comments on Part 37—Geographic Attendance Boundaries
V. Comments on Part 39—Indian School Equalization Program
VI. Comments on Part 42—Student Rights
VII. Comments on Part 44—Geographic Boundaries
VIII. Comments on Part 47—Uniform Direct Funding and Support for Bureau-funded Schools
IX. Procedural Matters
I. Background
A. What Information Does This Section Address?
This section addresses:
—Requirements of the Act.
—Overview of Negotiated Rulemaking Process.
—How public comments were handled.
B. What Are the Negotiated Rulemaking Requirements of the No Child Left Behind Act of 2001?
Under 25 U.S.C. 2018 , the Secretary of the Interior (Secretary) established the No Child Left Behind Negotiated Rulemaking Committee (Committee) to develop proposed rules to implement several sections of the Act relating to the Bureau-funded school system. (In this preamble and rule we use the term “the Act” to refer to the No Child Left Behind Act, Pub. L. 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and amends the Education Amendments of 1978.) The Act required that the Committee be comprised only of representatives of tribes served by Bureau-funded schools and the Federal government. It also required that, to the maximum extent possible, the tribal representative membership should reflect the proportionate share of students from tribes served by the Bureau-funded school system.
The requirements of the Act that are the subject of this negotiated rulemaking process are:
(1)
20 U.S.C. 6316(g):
Develop a definition of “Adequate Yearly Progress” for the Bureau-funded school system;
(2)
25 U.S.C. 2004:
Attendance boundaries for Bureau-funded schools;
(3)
25 U.S.C. 2007:
A determination of the funds needed to sustain Bureau-funded schools and a formula to allocate the current funds;
(4)
25 U.S.C. 2010:
The direct funding and support of Bureau-funded schools;
(5)
25 U.S.C. 2016:
The rights of students in the Bureau-funded school system; and
(6)
25 U.S.C. 2501, et seq., the Tribally Controlled Schools Act (TCSA) of 1988, as amended by the Act:
Discharge of the Secretary's responsibilities under this Act through which tribes and tribal school boards can operate Bureau-funded schools under the grant mechanism established in the Tribally Controlled Schools Act.
C. What Was the Negotiated Rulemaking Process?
Under the Act, in August and September, 2002, the Secretary conducted regional consultation meetings with tribes on the six areas of the Act to be negotiated. Following consultation and under the Act and the Negotiated Rulemaking Act (subchapter III of chapter 5, title 5, United States Code), in November, 2002, the Secretary published a Notice of Intent To Form a Negotiated Rulemaking Committee (67 FR 75828, December 10, 2002) and requested nominations for tribal representatives for the Committee.
The Secretary reviewed tribal nominations for tribal representatives and announced selection of 19 tribal representatives and 6 Federal representatives from the Department of the Interior (68 FR 23631, May 5, 2003). Tribal membership on the Committee represented, to the maximum extent possible, the proportionate share of students from tribes served by Bureau-funded schools. The Secretary chartered the No Child Left Behind Negotiated Rulemaking Committee under the Federal Advisory Committee Act (5 U.S.C. Appendix) on May 1, 2003.
The Committee held its first meeting in June, 2003. It agreed on protocols to govern the meetings and selected three tribal representatives and two Federal representatives as co-chairs. A third party neutral approved by the Committee served as lead facilitator for all Committee meetings. The Committee met five times, from June 2003, through October 2003, to develop recommendations for six proposed rules. The Committee divided the areas subject to regulation among four work groups: funding and funding distribution; student rights and geographic boundaries; administration of grants; and adequate yearly progress. These work groups prepared written products for review, revision, and approval by the full Committee.
The Committee operated by consensus and recommendations for proposed rules were consensus decisions. All Committee and work group meetings were open to the public, and members of the public were afforded the opportunity to make oral comments at each session and to submit written comments.
Federal Register
notices stating the location and dates of the meetings and inviting members of the public to attend were published prior to each meeting. In addition, Committee information including meeting locations and dates and meeting agendas and summaries were provided on the Office of Indian Education Program Web site at:
http://www.oiep.bia.edu.
The Department published a proposed rule in the
Federal Register
on February 25, 2004 (69 FR 8752), with a 120-day comment period. (The Department subsequently reopened the comment period for an additional 10 days.) In August 2004, following the public comment period, the Committee reconvened to review public comments and make recommendations for final rules to the Secretary.
D. How Were Public Comments Handled?
The Notice of Proposed Rulemaking for parts 30, 37, 39, 42, 44, and 47, published February 25, 2004, provided
for a 120-day public comment period. We also reopened the public comment period for an additional 10 days at the end of the 120-day public comment period. We received 47 comments from individuals, tribal leaders, schools, education associations, school boards, and the U.S. Department of Education. Because the proposed rules were the result of negotiated rulemaking, the Committee reconvened to review public comments at the end of the public comment period.
The Committee was provided the full text of each comment and summaries of each comment for review. The Committee operated by consensus in reviewing comments to determine whether to accept a comment and make suggested changes to a rule, accept a comment and modify suggested changes, or acknowledge a comment and make no changes. Comments were handled as follows.
—Where comments referred to issues that are beyond the scope of this rule, such as inadequate funding or disproportionate allocations, or to issues that were not relevant to this rule, such as tribal recognition or comments on the Paperwork Reduction Act requirements (the comment period ended on PRA items in March, 2004), the Committee acknowledged the comments, but took no action on them.
—Where comments agreed with the proposed rules, the Committee acknowledged the comments.
—Where comments disagreed with the proposed rules, the Committee acknowledged the comments. The disposition of these comments and the reasons that they were accepted or not accepted are treated in the detailed discussions that follow.
—Where the Committee did not have consensus to reopen a particular section to consider comments suggesting changes, the Department reviewed the comments and made changes where it deemed necessary. These changes are noted in the response to comments section for each part.
Following receipt of the Committee's recommendations for the final rules, the Secretary reviewed the public comments and made changes as noted for each part. Changes that are purely grammatical are not discussed. Public comments and responses are noted below under the applicable part.
E. How Were Oversights in the Proposed Rule Corrected?
When the proposed rule was published, there was an oversight in the wording of the amendatory language for part 39. Rather than stating that the entire subpart was proposed for revision, the amendatory language should have stated that only subparts A through H were proposed for revision. Our intention, and that of the negotiated rulemaking Committee, was to leave subparts I through L in place with no revisions. This final rule corrects that oversight.
F. How Were Conforming Amendments to Parts 31 and 36 Handled?
Additional changes are required in order to eliminate conflicts between the amendments in these regulations and existing regulations in other parts of 25 CFR. In a rule published elsewhere in today's
Federal Register
and identified by the RIN 1076-AE54, the Department is deleting provisions in parts 31 and 36 of 25 CFR that conflict with the amendments published in this rule.
II. Public Comments—General
We received the following general comments referring to all parts:
Comment:
The proposed rules may go against tribal culture and affect tribal sovereignty and do not ensure fair and equal treatment for tribes.
Response:
We noted the comment and did not make any changes to the rules based on these comments. Congress mandated that we promulgate rules relating to certain sections of the Act.
Comment:
Other provisions of the Act should be included in this rulemaking.
Response:
We noted the comment and did not make any changes based on this comment. The comment is beyond the scope of these rules. The Secretary determined which sections of the Act to include in this negotiated rulemaking.
Comment:
The Act provides no additional funding for education. Funding is insufficient. Redistribute funding to improve the concentration where it is needed.
Response:
We noted the comment and did not make any changes based on this comment. The comment is beyond the scope of these rules.
III. Comments on Part 30—Adequate Yearly Progress
For purposes of adequate yearly progress (AYP), the Bureau of Indian Affairs is considered the State Educational Agency (SEA) for the Bureau-funded school system.
20 U.S.C. 6311(b) requires each State to submit a plan to the Secretary of Education which demonstrates that the State, through its SEA, has adopted challenging academic content standards and challenging student academic achievement standards applicable to all schools in the State, and to develop assessment devices through which student achievement will be measured.
The Act requires each SEA to define the AYP that schools and local educational agencies (LEAs) must attain toward the goal of all students reaching the proficient level on reading/language arts and mathematics assessments by school year 2013-2014. Each State's AYP definition must include a starting point and intermediate goals for student improvement in reading/language arts and mathematics; if a school or LEA does not meet the intermediate goals for two consecutive years or more, it is identified as in need of improvement and must implement an improvement plan and take certain other actions under the Act.
The Act requires a State and the Bureau of Indian Affairs to define AYP in a manner that achieves the following requirements:
—Applies the same high standards of academic achievement to all schools;
—Is statistically valid and reliable;
—Results in continuous and substantial academic improvement for all students;
—Measures progress of the SEA (BIA) and schools based primarily of the academic assessments; and
—Includes separate measurable annual goals for continuous and substantial improvement in the academic achievement of all students in the school; economically disadvantaged students; students from major racial and ethnic groups; students with disabilities; and students with limited English proficiency.
The AYP definition must also include “additional indicators.” For high schools, the additional indicator must be graduation rates. The SEA must select one additional academic indicator applicable to elementary and middle schools. An SEA may also identify additional optional indicators of student progress to include in its definition of AYP.
To define Adequate Yearly Progress (AYP) for Bureau-funded schools, the Committee first had to master an understanding of all of the components of Adequate Yearly Progress under the Act and how they interrelate with a final definition of AYP. While the workgroup had to look at the curriculum, standards, and assessments that Bureau-funded schools were using, the Committee did not negotiate these items. The negotiation was limited to the definition of AYP.
A detailed procedure for submission of an alternative AYP definition by a tribe or school board, and for review/
approval of that definition by the Secretary of the Interior is included in §§ 30.106—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 consequences of failing to make AYP are described in § 30.117. While the remedial statuses of “school improvement,” “corrective action,” and “restructuring” applicable to public schools are also applicable to Bureau-funded schools, the latter are exempt from two requirements—school choice and supplemental educational services—that apply to public schools (see § 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.
Only major, substantive public comments are discussed below. In some instances, we have combined several similar or identical comments and replied to them in one response. Grammatical changes, minor wording revisions, and other purely style-oriented comments are not discussed; however, changes to the final rule reflect such public comment. The Secretary reviewed the final rule and made the changes as noted below.
A. Comments the Committee Considered That Resulted in No Change to the Rule
Comment:
There were several comments supporting the proposed definition of adequate yearly progress for Bureau-funded schools. These comments included:
—Agreement with the proposed definition of adequate yearly progress being that of the State in which a Bureau-funded school is located;
—Agreement with allowance for a tribe's submission of its own set of alternatives; and
—Agreement with the language describing the Secretary's trust responsibility, the sovereign rights of Indian Tribes, and the State's lack of jurisdiction over Bureau-funded schools.
Response:
These comments were considered, appreciated, and, because they were in agreement with the rule, no action was taken.
Comment:
Several commenters suggested that:
—The regulations should require that a school's alternative definition of adequate yearly progress (AYP) “identify” what is from the State's definition and what is not; and
—The Department of the Interior should establish a system of rewards and sanctions.
Response:
These comments were considered and no action was taken because the Committee had already considered this in drafting the proposed rule.
Comment:
Change § 30.119(b), to make it more specific and state that:
—The school board has the sole authority and responsibility for determining the nature and implementation of remedial actions in accordance with the Act; and
—In implementing any remedial actions the Board is not subject to an approval process from the Bureau, but may request and receive technical assistance concerning remedial actions.
Response:
The comment was considered and no action was taken. The Committee determined that the suggested change is unnecessary as section 20 U.S.C. 6316(g)(4) is clear.
Comment:
There are several references in the rule to various parts of section 1116 of the Act, so section 1116 should be included in the rule.
Response:
This comment was considered and no action was taken because the Committee believed that this would not improve the rule.
Comment:
Language should be added to § 30.122 to say that providing funding and technical assistance to schools that fail to make AYP is not just a responsibility, but a priority to the Bureau.
Response:
This comment was considered and no action was taken.
Comment:
Section 30.126 should be modified to match section 1116(g) and to:
—More clearly state that the Bureau collects information from grant and school boards to enable its reporting requirement, but that the Bureau does not make the determination of school improvement, corrective action or restructuring status for Bureau-funded grant and contract schools; and
—Include language implementing section 1116(g) for tribally controlled school boards to identify the factors that led to any determination of remedial actions for the school and for those factors to be reported to the Department of Education.
Response:
This comment was considered and no action was taken because the Committee felt the statutory language was clear.
Comment:
Rewards and sanctions should be the responsibility of the Bureau.
Response:
This comment was considered and no action was taken.
B. Comments the Committee Considered That Resulted in Changes to the Rule
Comment:
Delete the reference to “curriculum” since adoption of the definition of AYP used by the State in which the school is located would not mean a school needs to use the State curriculum. Instead add the phrase “academic content and student achievement” before “standards.”
Response:
This change was made and is reflected in § 30.104(a).
Comment:
Delete the reference to “curriculum” and add “solely for the purpose of using the State's academic contents and student performance standards, assessments, and definition of AYP.”
Response:
This change was made and is reflected in § 30.104(a)(2).
Comment:
Insert the term “trust” before responsibility for Indian education.
Response:
This change was made and is reflected in § 30.104(a)(3).
Comment:
Insert that the proposal must meet the requirement of section 1111(b) of the Act and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and students served.
Response:
This change was made in part. The term “to be consistent with section” was removed and, “must meet the requirements of 20 U.S.C. 6311(b), taking into account the unique circumstances and needs of the school or schools and the students served” was added, as reflected in § 30.106.
Comment:
The reference to the “State's definition” of AYP is in error. It should be a reference to the Bureau's definition of AYP.
Response:
The word “State's” was changed to “Secretary's” as reflected in § 30.108.
Comment:
The language should be changed to say “By the 2005-2006 school year, a Bureau-funded school must measure the achievement of all students enrolled in grades three through eight, and once for all students enrolled in grades 10-12. Until that time, the Bureau-funded schools must measure the achievement of all students
at least once during grades three through five, six through nine and 10-12.”
Response:
Revised § 30.114 states an assessment is required for all students in grades three through eight and at least once for all students in grades ten through twelve.
Comment:
The rule must be revised to clarify that a school fails to meet AYP if it is deficient in any of the measurements in § 30.107(b)(6)(i) or (ii) as recommended in an earlier comment.
Response:
The change was made and is reflected in § 30.116.
C. Comments the Committee Considered That Resulted in No Consensus With No Change to Rule
Comment:
There were several comments suggesting the Department of the Interior, Office of Indian Education Programs should develop its own definition of AYP based on Bureau-wide standards and assessments.
Response:
The Committee consensus was to define the Secretary of the Interior's definition of AYP as each State's definition of AYP, since the Department lacks an independent set of standards and assessments necessary to establish a definition of AYP. Although the Committee received very few comments on this decision, some Committee members commented on this issue. When the comments were being reviewed, some of the tribal members of the Committee decided to withhold consensus on keeping the proposed definition of AYP. Since the Committee failed to reach consensus in recommending a final AYP rule, it is left for the Secretary to determine the rule.
The Secretary has decided to keep the definition of AYP as published in the Notice of Proposed Rulemaking published on February 25, 2004 with certain clarifying changes as described in the preceding section. Since the Department did not receive comments that had not already been considered when the Committee made the difficult choice to recommend the definition found in the NPRM, the Secretary decided to adopt the NPRM's definition. Thus, the definition of AYP remains that of the State in which a school is located until the school has received a waiver of that definition from the Secretary of the Interior.
The AYP workgroup of the negotiated rulemaking Committee initially considered a definition that would require all Bureau-funded schools to show that a set percentage of students (
e.g.
, 11 percent) progressed annually from the “basic” achievement level to the “proficient” or “advanced” achievement levels. This idea was abandoned, however, because the Department of Education, which supplied resource consultants to the Committee, advised that this methodology would not be statistically reliable. The Department of Education notes that aggregating Bureau-funded school assessment data to make AYP determinations is not statistically reliable because each school uses a different assessment system and because, collectively, the assessments in use do not meet the requirements of the Act in 20 U.S.C. 6311(b)(3)(C)(ii). Therefore, the Committee needed to develop a uniform assessment system. As the Committee discovered, Bureau had abandoned requiring uniform curriculum and assessments and had instead allowed schools to align their curriculum with the State in which the school was located. Thus, the Committee appeared to be left with two options:
—Selecting a single State's system with one set of curriculum, academic content and student achievement standards and assessments; or
—Allowing each Bureau-funded school to follow the definition of the State in which it is located.
After Congress passed the Goals 2000 Act (Pub. L. 103-227), States had to set standards for student achievement. The Bureau chose to adopt national standards, but most schools chose to align with the standards of the State where they were located. The Committee found that the Bureau of Indian Affairs has traditionally allowed tribes to follow State curricula, academic content and student achievement standards and assessments. Originally, the Bureau had attempted to create a system in which all of the tribes would follow one set of curriculum, standards, and assessments. Some tribes expressed concern over this approach. Tribes suggested that the students of Bureau-funded schools would be better served by allowing the schools to follow the State's curriculum, standards, and assessments because the Bureau-funded school students are traditionally more transient and sometimes move between Bureau-funded schools and public schools. Therefore, Bureau-funded schools began aligning their curriculum, standards, and assessments with the State in which they were located.
In light of this history, the Committee revised its initial plan and decided to adopt as the Secretary's definition of AYP the definition of the State in which a school is located. However, a tribal governing body or school board may develop an alternative AYP definition and submit it to the Secretary for approval. This decision implements 20 U.S.C. 6316(g) of the Act, which expressly permits a tribe or school board to waive the Bureau's AYP definition and develop its own, subject to the Secretary's approval in consultation with the Secretary of Education.
During our initial negotiations, Tribal representatives on the Committee expressed serious objection to adopting State AYP definitions as the Secretary's definition instead of establishing a Bureau-specific definition, which some tribes and school boards might prefer. There was concern that requiring use of a State's definition would imply that Bureau-funded schools were subject to State jurisdiction, would signal abandonment of the Federal Government's trust responsibility for Indian education, and could diminish tribal sovereignty. In recognition of these concerns, the Committee developed language for the proposed rules that expressly states that nothing in the rules diminishes the Secretary's trust responsibility for Indian education or any statutory rights, affects in any way the sovereign rights of an Indian tribe, or subjects Bureau-funded schools to State jurisdiction.
D. Comments the Committee Considered That Resulted in No Consensus With Changes to the Rule
The Committee also had no consensus regarding comments made by the Department of Education on the proposed definition of AYP. The Department of Education did not provide these comments during the original public comment period.
Since the Department of Education is a Federal agency, the Department of the Interior believed that it could nevertheless consider Education's comments. However, to ensure fairness to any member of the public who had not yet provided comment, the Department of the Interior formally reopened the public comment period for receipt of comments from Education and any member of the public. During review of the comments, the Federal Committee members believed that some of Education's comments should be accepted and the proposed changes be made to the rule. Some tribal Committee members objected that the Federal Committee members would not negotiate whether to consider Education's comments. Therefore, the Committee could not reach consensus on whether to accept Education's comments. Since there was no Committee recommendation, the Secretary in adopting the final rule has accepted certain Department of Education comments.
Comment:
The rule should clarify in §§ 30.104 and 30.105 that any Bureau-funded school that uses the Bureau's definition of AYP must also use the academic, content, and student achievement standards and State assessments of the State in which the school is located. Standards and assessments are a necessary part of an accountability system.
Response:
The Committee could not reach consensus to change the proposed rule based on this comment from the Department of Education. Since there was no consensus Committee recommendation, the Secretary accepted the Department of Education's comment and changed the rule to read: “Yes. A tribal governing body or school board may waive all or part of the Secretary's definition of academic content and student achievement standards and assessments and AYP. However, until the alternative definition is approved under § 30.113 the school must use the Secretary's definition of academic content and student achievement standards, assessments, and AYP.”
Comment:
The rule should revise § 30.107 to:
—Use the same language as section 1111(b) of the Act to take into account the unique circumstances and needs of the school or schools and the students served;
—Add a citation to 34 CFR 200.13-20; and
—State that a waiver request will include an explanation of what standards and assessments will be used, as required by section 1111(b).
Response:
Since there was no consensus Committee recommendation on whether to accept this comment from the Department of Education, the Secretary accepted the comment and made the following changes:
—Changed the term “curriculum” as recommended in several comments;
—Removed science from the areas that require a measurement of progress as recommended in several comments; and
—Added “academic contents and achievement standards” as recommended throughout the document.
The Secretary also added the Department of Education's language suggestions to the Department's final rule in § 30.107 to read:
§ 30.107
What must a tribal governing body or school board include in its alternative definition of AYP?
(a) An alternative definition of AYP must meet the requirements of 20 U.S.C. 6311(b)(2) and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.
(b) In accordance with 20 U.S.C. 6311(b) and 34 CFR 200.13-200.20, an alternative definition of AYP must:
(1) Apply the same high standards of academic achievement to all students;
(2) Be statistically valid and reliable;
(3) Result in continuous and substantial academic improvement for all students;
(4) Measure the progress of all students based on a high-quality assessment system that includes, at a minimum, academic assessments in mathematics and reading or language arts;
(5) Measure progress separately for reading or language arts and for mathematics;
(6) Unless disaggregation of data cannot yield statistically reliable information or reveals personally identifiable information, apply the same annual measurable objectives to each of the following:
(i) The achievement of all students; and
(ii) The achievement of economically disadvantaged students, students from major racial or ethnic groups, students with disabilities, and students with limited English proficiency;
(7) Establish a starting point;
(8) Create a timeline to ensure that all students are proficient by the 2013-2014 school year;
(9) Establish annual measurable objectives;
(10) Establish intermediate goals;
(11) Include at least one other academic indicator which, for any school with a 12th grade, must be graduation rate; and
(12) Ensure that at least 95 percent of the students enrolled in each group under § 30.107(b)(6) are assessed.
(c) If a Bureau-funded school's alternative definition of AYP does not use a State's academic content and student achievement standards and academic assessments, the school must include with its alternative definition the academic standards and assessment it proposes to use. These standards and assessments must meet the requirements in 20 U.S.C. 6311(b) and 34 CFR 200.1-200.9.
(d) The measurement must include graduation rates and at least one other academic indicator for schools that do not have a 12th grade (but may include more than one other academic indicator).
Comment:
There is substantial concern about a regulation that requires the Secretary and the Secretary of the Department of Education, regardless of the complexity of a particular waiver request, to approve or disapprove all alternative definitions of AYP within 90 days of receiving a completed alternative definition. The suggestion was made to include an exception for unusual circumstances that may require additional time. A notification provision should also be added to inform a school that seeks a waiver what additional time will be needed.
Response:
Section 30.113(d) now states that the Secretaries will, “review the proposed definition to determine whether it is consistent with the requirements of 20 U.S.C. 6311(b) of the Act.” It does not specify a time within which the Secretaries will act. While the Secretaries will handle each situation expeditiously, the revised wording of the regulation allows flexibility in processing individual cases and ensures that extra time can be taken where necessary.
Comment:
Merely providing the Department of Education with notification of the Department of the Interior's receipt of a completed proposed alternative definition of AYP is insufficient. The last phrase in the Elementary and Secondary Education Act (ESEA) section 1111(g)(1)(B) provides for the Department of Education's Secretary to have the information needed to determine whether a request of an alternative AYP definition should take into account the unique circumstances and needs of school or schools and the students served. This statutory sentence makes no sense if interpreted to mean that the Secretary of Education may only disapprove an alternative definition that the Secretary chooses to make the subject of a consultation with the Department of Education—which is all that § 30.113 would require. The Act surely did not mean to create opportunities for inconsistencies in the Federal government's overall approach to approving alternative AYP definitions. Nor should the Executive Branch do so as a matter of interpretative choice.
The words of the statute in 1116(g) state that the Secretary of the Interior, “in consultation with the Secretary if the Secretary of the Interior requests the consultation, shall approve such alternative definition unless the Secretary determines that the definition does not meet the requirements of section 1111(b), that takes into account the unique circumstances and needs of such school or schools and the students served.” While this language is admittedly cumbersome, three fundamental principles compel the approach we strongly request DOI to take:
—The Secretary of the Department of Education expresses statutory responsibility for determining that, as a part of consultation with DOI, alternative definitions do not meet the statutory requirements (in keeping with the Department of Education's overall title I, part A statutory responsibility to administer the title I, part A requirements governing systems of accountability);
—The Executive Branch's need to avoid inconsistencies in application of section 1111(g)(1)(B); and
—Take into account Interior's and Education's differing expertise in assessing whether an alternative AYP definition meets the requirements of ESEA section 1111(b) and applicable regulations, taking into account the unique circumstances and needs of the school or schools and the students served.
Response:
The Committee could not reach consensus to change the rule based on this comment. The Notice of Proposed Rulemaking provided that the Secretary of the Interior made the final determination on whether to grant an AYP waiver. The Committee believed that the statute could be read to mean that the Secretary of the Interior has the final decision-making power. During the public comment period, the Federal team members engaged in discussion within the Department of the Interior and with the Department of Education. The Departments tried to find a compromise that would provide for consistency in Federal decision-making and ensure that the Departments work together, using their collective expertise, to make a decision regarding whether an alternate definition of AYP meets the requirements of statute and regulations. The result of the discussion was the Department of Education's comment that the decision on the waiver should be a joint decision by the Secretary of the Interior and the Secretary of Education.
When the Committee convened to review the comments, tribal members expressed concerns that the Federal members engaged in this dialogue with the Department of Education and that the Federal team was prepared to withhold consensus for any other result. Consequently, the Committee could not reach consensus on whether to consider the Department of Education's comments. Thus, the final rule has adopted certain Department of Education comments and revised § 30.113(d) through (h) to read:
(d) The Secretaries review the proposed alternative definition of AYP to determine whether it is consistent with the requirements of 20 U.S.C. 6311(b). This review must take into account the unique circumstances and needs of the schools and students.
(e) The Secretaries shall approve the alternative definition of AYP if it is consistent with the requirements of 20 U.S.C. 6311(b), taking into consideration the unique circumstances and needs of schools and students.
(f) If the Secretaries approve the alternative definition of AYP:
(1) The Secretary shall promptly notify the tribal governing body or school board; and
(2) The alternate definition of AYP will become effective at the start of the following school year.
(g) The Secretaries will disapprove the alternative definition of AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). If the alternative definition is disapproved, the tribal governing body or school board will be notified of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not meet the requirements of 20 U.S.C. 6311(b).
(h) If the Secretaries deny a proposed definition under paragraph (g) of this section, they shall provide technical assistance to overcome the basis for the denial.
Comment:
The proposed rule needs to be revised to more closely reflect the ED-DOI agreement in 20 U.S.C. 7824.
Response:
The Committee did not reach consensus to change the proposed rule based on this comment from the Department of Education. Since the Committee provided no recommendation on this comment, the Secretary has decided to delete this section of the rule, as it is specifically provided for in the Act.
IV. Comments on Part 37—Geographic Attendance Boundaries
The Act requires designated separate geographic boundaries for all Bureau-funded schools and provides for tribes to have input into the process. This part provides guidance and clarifies what roles tribes have in establishing and revising geographic attendance boundaries for schools. It also clarifies some of the limitations on the Secretary's ability to change school boundaries. It recognizes distinctions for different boundary determinations for day schools, on-reservation boarding schools, and peripheral dorms and for off-reservation boarding schools. The rule provides guidance applicable to both types of schools, where appropriate (subpart A) and provides separate guidance for each type of school, where appropriate (day schools, on-reservation boarding schools, and peripheral dorms—subpart B and off-reservation boarding schools B subpart C). This part is intended to give tribes the opportunity to meaningfully participate in all decisions regarding attendance boundaries and related policies where not statutorily prohibited.
General Comments Requesting No Change
Several commenters approve of provisions of the rule that allow tribal entities to work collaboratively with Bureau-funded schools when geographic boundaries are determined or revised and that provide for assistance from the Department if tribes need assistance. Several commenters agree with the rule provision that tribes have ongoing authority to suggest changes to and participate in the revision of geographic attendance boundaries for schools. Some comments support the flexibility for allowing students to attend schools outside their geographic attendance boundaries. One commenter noted that rights in the rule are rights recognized pursuant to reserved tribal authority stemming from treaties between the United States and tribes. Some commenters to this part in the NPRM preamble disagree with allowing parental choice (which was not included in the final rule). One commenter stated that the Bureau can and must withhold payment from a school when a student who does not live within the school geographic attendance boundary has not received a waiver in accordance with tribal law.
Comment:
Funding should not be withheld solely because a student is attending a school outside his or her attendance area.
Response:
No change was made because a student is funded at the school they are attending.
Comment:
Revise § 37.110 to state that a change of school is the decision of the parents and/or the student.
Response:
No change was made because the Act requires the Secretary to promulgate regulations for school boundaries.
Comment:
Revise the term “geographic attendance area” in § 37.101 to clarify that it may include off-reservation areas, particularly off-reservation boarding schools.
Response:
No change was made because the rule states that geographic attendance areas include off-reservation boarding schools.
Comment:
If parental choice is included in the rule, geographic boundaries have no meaning.
Response:
No change was made because parental choice is not included in the rule.
Comment:
Revise § 37.111 to state that tribes have input on authorizing transportation funds for students attending schools outside their geographic attendance boundaries.
Response:
The Committee acknowledged this comment, considered it, and made no change.
Comment:
Revise § 37.111 to reflect that a Bureau-funded school may enroll eligible Indian students who are not members of the tribe.
Response:
We revised § 37.111(b) and added paragraph (c) to clarify that a
Bureau-funded school may enroll eligible Indian students who are not members of the tribe. The section authorizes ISEP-eligible students residing within the tribe's jurisdiction to receive transportation funding to attend schools outside the geographic attendance area in which the student lives. The section also authorizes tribal member students who are ISEP-eligible and not residing within the tribe's jurisdiction to receive transportation funding to attend schools outside the geographic attendance area in accordance with a tribal resolution issued by the tribe in which the student is enrolled.
Comment:
Revise § 37.122 to include a deadline for the Secretary to accept or reject a proposed geographic boundary change; a time period for publishing the
Federal Register
notice of an accepted change; and a time frame for informing a tribe why a suggested boundary change is not accepted.
Response:
The Committee acknowledged this comment, considered it, and made no change.
Comment:
Revise § 37.131 to clarify that all off-reservation boarding schools will have separate, non-overlapping boundaries, or, if parental choice is applied, delete this section as unnecessary.
Response:
No change was made because the rule does not need clarification and the section is necessary to the rule.
V. Comments on Part 39—The Indian School Equalization Program
A. General Comments on the Indian School Equalization Program
Comment:
Several comments stated that data for actual transportation costs incurred by Bureau-funded schools should:
—Take into account costs of gas and additional wear and tear that vehicles incur in isolated, remote locations; and
—Reflect two school years' worth of transportation information.
The commenters also felt that, after collecting this data:
—The Committee should reconvene to review the data and develop a proposed regulation; and
—The Secretary should then publish a proposed rule for notice and comment before a final recommendation is made.
Response:
The Committee acknowledged and considered this comment, however no change was made to the funding formula. The Committee agrees that it needs more information to develop an improved transportation funding formula. It therefore recommended to the Secretary that another negotiated rulemaking Committee convene after the Department and the Bureau-funded schools have gathered additional transportation information in order to develop a more accurate and fair transportation funding regulation.
Comment:
In the preamble, the Committee had asked for comments on the determination of an isolation factor. Several commenters acknowledged the effects of severe isolation that results in expenses above and beyond the norm. Some commenters felt that all schools were isolated and should qualify for an isolation adjustment and others suggested that even schools that have paved highways should be considered, as the areas surrounding some Bureau schools are underdeveloped.
Response:
The Committee acknowledged and considered these comments; however, there was no change made to the rule, as the comments did not give any specific indicators or suggestions on how to determine isolation factors.
Comment:
Also in the preamble, the Committee had asked if the funding formula should be left in the body of the rule or if it should be placed in the appendix. Commenters responded that the formula should be in the body of the rule.
Response:
The Committee recommends that the “minimum amount of funding to sustain each Bureau-funded school formula” be placed in the body of the rule and not in the appendix.
Comment:
The proposed rules may in practice contravene the culture of the Micoosukee Tribe and impinge on Tribal sovereignty. Due to the unique cultural aspects of Indian Tribes, the standards applied to non-Indians cannot be applied to Indians. The result would be to infringe on tribal culture, violate laws designed to protect tribes, and take away the right of tribes to live according to their customs and beliefs. The proposed rules do not ensure fair and equal treatment for tribes.
Response:
The comment was acknowledged and considered. No action was taken because the Committee's charge was to develop regulations to implement the Act and, therefore, the Committee had no authority to address this comment.
Comments:
Several commenters discussed the need for additional funding. One commenter did not support using general funds to redistribute in the base program categories arguing that the proposed items could pose a huge financial impact on schools. Several commenters suggested more funding is required for general education of students. Another comment was that the Act will provide no additional funding but merely reallocate current funding.
Several commenters shared the concern that current Bureau funding is insufficient in many areas, and that merely revising the distribution method is inadequate. What should have happened was a redistribution to concentrate funding where it is needed combined with additional funding to support the Act's mandates.
Another commenter suggested providing recurring funding to support educational services to pre-K students. One Commenter suggested that special circumstances, such as the therapeutic dormitory pilot project, should be included in the ISEP base. These comments also included a comment that another funding mechanism is needed to fund non-ISEP eligible students for distance and alternative learning and expressed disappointment that the funding formula did not take into account greater lengths of service of employees. Schools incur increased costs with employees who have greater lengths of service. Several commenters also were disappointed that the formula does not provide funding for after school programs.
Response:
These comments were acknowledged and considered and no action was taken because the Committee's charge was to develop regulations to implement the Act but it was not authorized to make funding recommendations.
Comment:
Several commenters discussed Off-Reservation Boarding Schools (ORBS) and suggested that ORBS should not receive an additional weighted unit in the funding formula. Others felt that ORBS should receive an additional weighted unit in the funding formula because their needs are unique as some of their students have legal and behavioral problems.
Response:
The Committee acknowledged and considered this comment; however, no change was made to the funding formula because the commenters did not present any additional arguments that had not already been considered by the Committee in drafting the proposed rules.
Comment:
Several commenters recommended that the funding formula be revised to provide a supplemental weight for students with disabilities because the mandatory 15 percent set aside may cause economic hardship on
a school and the part B process is cumbersome.
Response:
The Committee did not have consensus to open this issue for discussion. The current regulations and the proposed regulations mandate that each school set aside 15 percent of their basic instruction allotment to meet the needs of students with disabilities. If the 15 percent is inadequate to fund services necessary for eligible students with disabilities, schools may still apply for part B funding.
The Federal team decided that additional information is needed to determine if modifications are necessary to the 15 percent set-aside. The Committee recommends that additional information be gathered regarding the number of ISEP eligible students who are identified as disabled and who are receiving special education services, and other related information. If the information collected reveals that the 15 percent set-aside does not accurately reflect the percentage of ISEP eligible students with disabilities in the Bureau-funded school system, then the Committee recommends that a negotiated rulemaking committee negotiate revised special education funding regulations.
Comment:
The proposed rules will allow school districts to use Federal funds in a manner more consistent with their own reform strategies and priorities. It is important to note that these rules allow flexibility in adopting assessment systems composed entirely of locally developed and administered tests.
Response:
The comment was acknowledged and considered and no action was taken since no change was necessary based on this comment.
B. Section-Specific Comments
Section 39.2 What are the Definitions of Terms Used in This Part?
Comment:
There is no need for a definition of ISEP student count week.
Response:
The Committee acknowledged and considered this comment and made this change.
Comment:
The definition of school bus includes a definition of the operator, including the requirement that the driver be State qualified.
Response:
The Committee acknowledged and considered this comment and changed the definition of school bus to include “. . . operated by an operator in the employ of, or under contract to, a Bureau-funded school, who is qualified to operate such a vehicle under Tribal, State, or Federal regulations governing the transportation of students.”
Comment:
Why does the definition of tribally operated contract school include grant schools?
Response:
The Committee acknowledged and considered this comment and changed the definition to read “ Tribally operated school means an elementary school, secondary school, or dormitory that receives financial assistance for its operations under a contract, grant or agreement with the Bureau under section 102, 103(a), or 208 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450
et seq.
), or under the Tribally Controlled Schools Act of 1988.”
Comment:
Bureau-funded school and Bureau school should be defined.
Response:
The Committee acknowledged and considered this comment and added a definition of Bureau-funded school and Bureau school.
Comment:
Is the definition of ISEP count week still needed in view of the proposal to convert a 3-year rolling average for identifying the student count? The count period used for residential students is not the last full week in September. As only the transportation mileage count would be taken the last full week of September, the term could be changed to “transportation mileage count week.”
Response:
The Committee acknowledged and considered this comment and took out the definition of ISEP count week, but kept the definition as part of the definition of transportation.
Comment:
The following corrections are needed in the definition of “Limited English Proficient”: “(1) * * * means a child from a language background other than English who needs language assistance in his/her language or in English in school,” (2) “the child comes from an environment [where a language] other than English is dominant.”
Response:
The Committee acknowledged and considered this comment and adopted the suggested language changes to the definition of “Limited English Proficient.”
Comment:
The terms “Bureau-operated or -funded schools” used here is redundant. The term should be “Bureau-funded,” and that term should be defined, as suggested above.
Response:
The Committee acknowledged and considered this comment and took out the term “Bureau-operated” because it was redundant.
Comment:
The opening sentence of the definition for Special Education does not seem broad enough to cover the numbered items listed. Some special education students, especially those who are physically handicapped, require personal aides and other such accommodations that are customarily provided through special education programs and paid for with special education funds. Consider using the definition of “special education” in the IDEA regulations at 34 CFR 300.26.
Response:
The Committee acknowledged and considered this comment and adopted the definition of “special education” in the IDEA regulations at 34 CFR 300.26.
Comment:
The definition of “supervisor” requires clarity. Perhaps in a Bureau-operated school the individual in the position of ultimate authority is called “superintendent,” but that is not the term used in all contract and grant schools. Furthermore, the “ultimate authority” in a contract or grant school is the school board. The purpose of this term should be determined and the definition clarified accordingly.
Response:
The Committee acknowledged and considered this comment and the term “supervisor” was removed as a definition.
Comment:
The definition of “transported student” does not match the term. A “transported student” is not “the average number of students.” Either the term should be revised or the definition should be revised.
Response:
The Committee acknowledged and considered this comment and removed the definition of “transported student.”
Comment:
The definition of “three year rolling average” should expressly state that all supplemental weights should be included in the average. That is, the 3-year average should actually be an average of WSU count.
Response:
The Committee acknowledged and considered this comment and changed the definition to add the current year of operation in academic programs and residential programs.
Comments:
There were several comments on this section that did not result in a change to the rule. They include comments that:
(1) The definition of “agency” should be changed so it reflects what an agency does because it does not always provide services to governing bodies;
(2) The definition of “agency school board” is not necessary because they have no duties or responsibilities under ISEP;
(3) The definitions need to clarify whether a school counts non-ISEP students for ADM;
(4) The definition of “Individual Supplemental Services” should include SPED since schools are required to spend ISEP funds for SPED services and
since SPED is a non-base academic service;
(5) The “Limited English Proficiency” definition is too lengthy and should consist only of paragraph (3) because ISEP only deals with American Indians;
(6) The definition of “eligible Indian student” should be revised to establish an upper age limit for eligibility for ISEF funding;
(7) The “homebound” definition should require enrollment in a Bureau school, since a homebound student can qualify for ISEF and ADM count if he/she received the minimum level of contact hours; Suggested definition: “Homebound” means a student who is enrolled in a Bureau-funded school and is educated outside the classroom”; and
(8) The definition of “Local School Board” does not track the definition of that term in the Act and should read: “Local School Board,” when used with respect to a Bureau school, means a body chosen in accordance with the laws of the tribe.”
Response:
These comments were acknowledged and considered by the Committee, but the Committee determined that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Section 39.102 What Is Academic Base Funding?
Comment:
The term “base funding” should be clarified to distinguish between “academic base funding” and “residential base funding.”
Response:
The Committee acknowledged and considered this comment, and made this change throughout the funding section.
Comment:
The question should be revised to state, “What is included in base academic funding?”
Response:
The Committee acknowledged and considered this comment, and changed the question to read, “What is academic base funding?”
Comment:
The answer to § 102(a) in the proposed rule is incorrect because it states that base funding includes all available funding for educational services.
Response:
The Committee acknowledged and considered this comment, and changed the answer to more accurately reflect that base funding is the average daily membership times the weighted student unit.
Section 39.103 What Are the Factors Used To Determine Base Funding?
Comment:
The answer is inaccurate, as it states, “base funding factors” when really it is the weighted unit factor for base academic and base residential funding.
Response:
The Committee acknowledged and considered this comment, and changed the chart (contained in the answer) to more accurately illustrate what the base academic and base residential funding is for the appropriate grade levels.
Comment:
In the question the words “use” and “must” are transposed.
Response:
The Committee acknowledged and considered this comment, and modified the sentence so that these two words are transposed into their correct positions.
Section 39.104 How Must a School's Base Funding Provide for Students With Disabilities?
Comment:
Is it necessary for a school to comply with the Individuals with Disabilities Act (IDEA) if the school does not have enough students to qualify for part B funding?
Response:
The Committee did not reach consensus to discuss this issue as it is clear that any student identified as disabled must be provided special education services under IDEA.
Comment:
This section needs to be revised to select one term to refer to the students being described and use it consistently.
Response:
The Committee acknowledged and considered this comment, and modified the rule to read “students with disabilities” throughout the document.
Comment:
This section contains several inaccuracies and needs revision. Specifically, the term “academic base funding” should be used in place of “ISEP funds.” What is meant by “all components” of IDEA?. Also, paragraph (b) should address only the circumstances under which a school may use some or all of the 15 percent reserved in paragraph (a)(1) for a schoolwide program.
Response:
The Committee acknowledged and considered this comment and modified the paragraph to refer to “academic base funding” instead of “ISEP funds.” The Committee rewrote the paragraph to state that a school may spend all or part of the 15 percent academic base funding reserved under paragraph (a)(1) on school-wide programs to benefit all students (including those without disabilities) only if:
(1) The school can document that it has met all needs of students with disabilities with those funds; and
(2) After having done so, there are unspent funds remaining from the funds.
Section 39.105 Are Additional Funds Available for Special Education?
Comment:
In paragraph (a) the term “base funding” should be “base academic funding” and a reference to the 15 percent reserve should be inserted.
Response:
The Committee acknowledged and considered this comment, and changed the paragraph to read, “a school may supplement the 15 percent base academic funding reserved under § 39.104, for special education with funds available under part B of the Individuals with Disabilities Education Act (IDEA).”
Comment:
Revise paragraph (b)(2) to read, “provide training to staff to improve delivery of part B funds.”
Response:
The Committee acknowledged and considered this comment and revised the section to read, “providing training to Bureau staff to improve the delivery of part B funds.”
Comments: A commenter suggested clarification was needed on who makes the determination that schools have demonstrated that the reserved ISEP funds are inadequate to pay for additional SPED services and what criteria are used.
Response:
The comment was acknowledged and considered and no action was taken, as the Committee felt the rule was clear.
Section 39.106 Who Is Eligible for Special Education Funding?
Comments:
There were two comments on this section suggesting that clarification was needed as to whether the minimum age requirement only applies to ISEP SPED and if so why. The answer to the question of who is eligible for special education funding is not unique to special education. Rather it establishes age limits applicable to all students in the Bureau-funded system. It should be moved to the definition section.
Response:
The comment was acknowledged and considered and no action was taken as this section only refers to who is eligible for Special Education Funding.
Section 39.107 Are Schools Allotted Supplemental Funds for Special Student and/or School Costs?
Comment:
The Committee should take a serious look at categorical funding based on the special and unique educational needs of Indian children. The primary consideration seemed to be based on the distribution of available funds instead of the needs of children. The categorical funding must be based
on the actual services provided to student through a weighted student unit.
Response:
The Committee did not reach consensus on this item. The Federal team could not consider going back to a categorical system of basing the funding to a student on the type of disability that student may have.
Comment:
The answer to this question is inconsistent with the definition of the term “school-wide supplemental funds.” In that definition four conditions applicable to a school generate supplemental funds. By contrast, in the § 39.107 chart, a mix of both student conditions and school conditions that generate supplemental funding appear. The weights shown in the chart are not consistent.
Response:
The Committee acknowledged and considered this comment and revised the chart.
Comments:
Several commenters suggested that the Committee missed several categories of funding. One comment suggested serious consideration be given to allowing all schools to offer early childhood programs instead of using discretionary programming such as the FACE program. The funding of FACE should be moved to ISEP and each school should have a weight of at least .5. Another commenter suggested other programs be considered like vocational and technical education, food, summer programming, and electric technologies.
Other commenters suggested that school personnel costs and the cost of living should be taken into consideration and that all children should be funded equally. No child should be funded less than another child. The WSU for K-12 should be the same 1.5 WSU, especially for K's. The young children need more supervision, small classes, and therefore should not be only 1.15 WSU. This grade needs a teacher and an aide. Especially since the proposed WSU for intense bilingual is planned to be decreased to .13 WSU and all children will be eligible, this decrease will greatly impact our kindergarten program if the intense bilingual is decreased and the kindergarten grade WSU is the same. This should also apply to residential; the WSU should be the same for all grades.
Response:
The comments were acknowledged and considered and no action was taken as the Committee does not have authority to provide funding to early childhood education and because the commenters did not present any additional arguments that had not already been considered by the Committee in the draft proposed rules.
Section 39.110 Can ISEF Funds be Distributed for the Use of Gifted and Talented Students?
Comments:
There were several comments on the Gifted and Talented program. One commenter suggested that, as the rule is written, gifted and talented programs, apply only to academic programs. The weight for funding is included in ISEP, which is deducted before distribution of funds. Under this scenario, the rule creates a deficit for Residential Programs in boarding schools and major problems for residential dormitories that have absolutely no access to these gifted and talented funds. The gifted and talented program funds should be available to residential programs.
Another commenter suggested that it can be predicted that the gifted and talented program will grow by anywhere from 10-20 percent from current levels and such growth could create an impact in excess of $20 million that will affect only residential programs.
Another commenter suggested that the “gifted programs have always used the idea of giftedness from the dominant culture, the Native ideas of giftedness have not been readily considered.” It is important that Bureau schools make the proper assessment of giftedness, but whose definition is being used? Tribal leaders, parents, and the community should be involved in the process of defining gifted. The idea of placing a cap on the number of gifted students is not an option but rather an evaluation of what gifted means to the Native person and how that differs from the mainstream society. It should not be easy to get into the gifted program with the Bureau, but rather the school and community should give a clear demonstration of giftedness and how the school can support and advance the giftedness of the student in whatever ways appropriate.
Response:
The Committee could not reach consensus on these comments. These comments were acknowledged and considered by the Committee, but the Committee determined that the comments did not raise new concerns not already considered in the proposed rule. The Committee therefore took no action.
Comment:
Overall, the rules and procedures on Gifted and Talented seem cumbersome and administering the program is difficult due to the potential for abusing the count.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.112 What Is the Limit on the Number of Students Who Are Gifted and Talented?
Comment:
Although the rule states there is no cap on the number of gifted and talented students a school can have, there is a cap of 15 percent in Leadership and Visual and Performing Arts. Critical Thinking as a specific category has been eliminated. There should not be a cap on Gifted and Talented and the six specific categories should be restored.
Response:
The comment was acknowledged and considered and no action was taken. This is because the Committee felt they did not limit the number of students who can be classified as gifted and talented, but limited the number of students that would receive ISEP funding as a gifted and talented student.
Comment:
In order to better correspond to the answer provided, this question should be revised to read: “Is there a limit on the number of students a school can identify for the gifted and talented program?”
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
The proposed funding formula appears to be very cumbersome, complicated and an unrealistic method upon which schools would be dependent for funds to operate programs. A simpler formula needs to be established that would guarantee some degree of stability regarding operating funds for the entire year.
Response:
The comment was acknowledged and considered and no action was taken because the Committee determined that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Section 39.113. What are the Special Accountability Requirements for the Gifted and Talented Program?
Comment:
No outcome state is provided for what happens if a school does not meet the two requirements in this section.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.114 What Characteristics May Qualify a Student as Gifted and Talented for Purposes of Supplemental Funding?
Comment:
This question is awkwardly worded. (The question as published in the proposed rule read, “How does a school receive funding for gifted and talented students?”) Consider
revising the question to read, “what characteristics may qualify a student as gifted and talented for purposes of supplemental funding?”
Response:
The Committee acknowledged and considered this comment and revised the question as suggested.
Comment:
In (e) strike “determined by.”
Response:
The Committee acknowledged and considered this comment and struck the term “determined by.”
Comments:
Several commenters suggested changing the caps on specific gifted and talented funding. One commenter suggested that a cap of 25 percent of the student body for gifted and talented should be used. Another believed that the 15 percent cap on leadership and visual and performing arts will have a significant impact on schools as many Native American students fall into these categories. Restricting the number of Indian students that can be identified as gifted or talented in any given school setting can stifle the talents of countless students. Indian students who qualify for this program should not be left out simply because the quota has been filled. Several commenters suggested they would like the rule reconsidered to require documentation to identify all students who truly qualify for the gifted and talented program.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt they did not limit the number of students who can be classified as gifted and talented, but limited the number of students that would receive ISEP funding as a gifted and talented student.
Comment:
Paragraphs (a) and (b) do not identify the measuring tool, and paragraph (c) provides an option of NRT or CRT assessment. One commenter suggested that only norm-referenced tests (NRTs) or IQ tests be used for gifted and talented categories in § 39.114(a)-(c). Schools should develop their own criteria for placement in categories (d) and (e).
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language was clear and the Committee did not want to limit schools' options.
Comment:
This section does not specify what it is the student has to score in the top 5 percent of in order to be eligible. Does it mean the top 5 percent of students tested nationwide or just the school or some other group of students? “Intellectual Ability” is differentiated from “academic aptitude/achievement” even though it would seem that these might identify essentially the same students.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language was clear.
Comment:
Several commenters suggested that the criteria for gifted and talented students were overly inclusive. One commenter suggested the “Leadership” and “Visual and Performing Arts” criteria are quite subjective and will probably result in the schools simply identifying 15 percent of their student body for each category. For these students, special services will need to be available that will not be available to other students. This may cause implementation problems for students and schools alike. Another commenter suggested that their agency restrict the school to a maximum of 10 percent of enrollment in gifted and talented.
Other commenters suggested that the weighted student unit (WSU) for the gifted and talented program should be the same for all grades K-12 at .5 or .62 WSU. One commenter suggested that a discrepancy exists because of the low cap placed on measurable giftedness and the high cap on subjective giftedness. Nationwide, gifted talented student identification averages between 10-15 percent. In the recommended rules, giftedness can easily run in excess of 50 percent. Anything categorized above 50 percent should be considered the base program and curriculum should be adjusted accordingly.
Several commenters also suggested imposing a cap on gifted and talented that is no greater than the national average in any given year.
Response:
These comments were acknowledged and considered but no action was taken, as the 15 percent enrollment number was the result of several days of negotiations in which these issues were discussed at length.
Comment:
The proposed regulation does not indicate what grade levels are eligible for gifted and talented designations. The commenter objects to proving gifted and talented services before third grade.
Response:
The Committee acknowledged and considered this comment and no change was made as the grade level was left to the discretion of the schools.
Comment:
What is the purpose of screening annually and is only annual screening permitted?
Response:
The Committee acknowledged and considered this comment and no change was made as the Committee felt the language was clear.
Section 39.115 How Are Eligible Gifted and Talented Students Identified and Nominated?
Comment:
This question should be revised so that the term “gifted and talented” appears in the question. (In the proposed rule, the question read: How are eligible students identified and nominated?) Suggested rewording: “How may students can be nominated for gifted and talented designation?”
Response:
The Committee acknowledged and considered this comment and changed the question to include the term “gifted and talented.”
Comment:
The second sentence of paragraph (a) should be edited as follows: “A student may be nominated for gifted and talented designation using the criteria in § 39.114 by any of the following: * * * (5) The student himself or herself.”
Response:
Paragraph (a) was changed to read, “(a) Screening can be completed annually to identify potentially eligible students. A student may be nominated for gifted and talented designation using the criteria in § 39.114 by any of the following: * * * (5) The student himself or herself.”
Comment:
In paragraph (b) the word “child's” should be changed to “student's.”
Response:
The Committee acknowledged and considered this comment and changed the term “child's” to “student's.”
Comment:
The school is concerned with the proposed removal of the intensive residential guidance program. If the program is eliminated it will be easier to eliminate the services and the funding that are needed to meet these students' needs.
Response:
The comment was acknowledged and considered and no action was taken because the Committee intended all students to receive these services.
Section 39.117 How Does a School Provide Gifted and Talented Services for a Student?
Comment:
Neither the answer to this question nor any other proposed gifted and talented regulation describes the level of gifted and talented services that must be provided. A provision should be developed that includes the level of services requirements.
Response:
The comment was acknowledged and considered and no change was made to the rule because the comment did not present any additional argument that had not already been
considered by the Committee in drafting the proposed rules.
Section 39.118 How Does a Student Receive Gifted and Talented Services in Subsequent Years?
Comment:
The two sentences of paragraph (a) are contradictory. If a student does not have to reapply for a gifted and talented designation, why must the student be retested every 3 years? The second sentence should be deleted.
Response:
The Committee acknowledged and considered this comment and changed the last sentence of paragraph (a) to read, “However, the student must be reevaluated at least every 3 years through the 10th grade to verify eligibility for funding.”
Comment:
There were several comments suggesting in paragraph (b), the cross-reference to § 39.114 should read “(d) or (e)” rather than “(e) or (f).”
Response:
The Committee acknowledged and considered this comment and changed the cross reference to read “(d) or (e).”
Section 39.119 When Must a Student Leave a Gifted and Talented Program?
Comment:
It is recommended that no student be tested out of gifted and talented and therefore this section should be revised to the extent it calls for testing out. If the section remains, how can a school comply with paragraph (b)? Would the student have to be tested and found to no longer qualify? If this remains, it should be limited to students identified under leadership and visual performing arts only. If the purpose of the testing required in paragraph (b) is evaluation and testing of gifted and talented students' progress, this is acceptable.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language in the proposed rule was clear.
Section 39.130 Can ISEF Funds Be Used for Language Development Programs?
Comment:
The rules acknowledge the presence of students who are not proficient in any language, but do not provide any means for identifying them. While there is a test at § 39.134 for testing English ability, there is seemingly no measure for identifying the skill of students in their Native language.
Response:
The comment was acknowledged and considered and no action was taken as the purpose of this section is to determine whether a student has limited proficiency in English.
Comment:
Several commenters supported this section of the proposed rule. One tribal commenter agrees with the recommended special cost factor of .13 for language programs. Not only has that been a concern for many years, but it has not always been clear if Bureau schools had permission to teach Native languages.
Another commenter suggested that the tribe supports the proposed rule on Language Development programs, particularly the parts that seek to ensure the goal of infusing Native language and culture in to school curricula. However, the tribe does not agree with using ISEP funds to support Language Development programs for Native students who are predominantly ELL learners or are limited English language proficient as ISEP funds should be used generally for all school programs. Instead, funding for Language Development and ELL students should be provided for separately and the WSU be appropriated at 0.25 based on this new definition. The tribe expects Bureau to seek specific appropriations from Congress to support Native Language development curricula.
Response:
The comment was acknowledged and considered and no action was taken as these regulations have no affect on the amount of current or future appropriations.
Section 39.131 What Is a Language Development Program?
Comment:
Paragraphs (d) and (e) of this section seem to describe the same student. If there was a different intent, one or both of the paragraphs should be revised.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language was clear.
Comment:
The School Board is afraid that the English proficiency assessment will remove students from their Native Language program. If the intent is to have all Native American students taught their Native Language, more funding will be required to sustain the effort as the funding will be subtracted from the general pool.
Response:
The comment was acknowledged and considered and no action was taken as these regulations have no effect on the amount of current or future appropriations.
Section 39.132 Can a School Integrate Language Development Programs Into Its Regular Instructional Program?
Comment:
We strongly support the concept of the integration of Native language programs into the regular curriculum.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.134 How Does a School Identify a Limited English Proficient Student?
Comment:
Since the proposed rules for AYP include using the definition from the State Accountability Workbook in which the tribally funded school is located, it would be appropriate to provide an option for using the LEP assessment instrument approved for use within the State in which the tribally funded school operates.
Response:
The comment was acknowledged and considered and no action was taken because the Committee felt this option was already available to tribes.
Section 39.135 What Services Must Be Provided to an LEP Student?
Comment:
The language indicating that services are to assist LEP students become proficient in English and to the extent possible their Native language seems too vague and ambiguous.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language was clear.
Comment:
We support the .13 weight for the Language Development Programs, so as not to adversely impact a school's ISEF allotment that would occur if the current .2 weight for intense bilingual were retained.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.137 May Schools Operate a Language Development Program Without a Specific Appropriation From Congress?
Comment:
The citation regarding Native Language curriculum is incorrect. It should read 25 U.S.C. 2007(C)(1)(E).
Response:
The Committee acknowledged and considered this comment and the citation was changed to read 25 U.S.C. 2007(C)(1)(E).
Comments:
Several commenters made suggestions on future appropriations. One commenter suggested if Congress does not provide additional ISEP funding for Native Language curriculum, Native Language programs for restoration and enhancement should be funded solely out of the new appropriation, and the “Language Development Program” described in these regulations should be altered accordingly. That is, the “Language
Development Program” should be restored to the focus of teaching English to students not proficient in that language and the weight for these students should be restored to the current level of .2.
Another commenter suggested this section places a limit on the amount of future Congressional appropriations that can be appropriated for Native language programs. The statute on which this section is based also seems indecipherable. It is not clear that this rule captures the meaning of the statutory provision, whatever it may be.
Response:
The comment was acknowledged and considered and no action was taken as these regulations have no effect on current or future appropriations.
Section 39.141 What Is the Amount of the Small School Adjustment?
Comment:
The definition of small schools in the Proposed Rule needs to be expanded slightly to include mores schools not accomplishing economies of scale, and funding should take into account costs of accreditation.
Response:
The comment was acknowledged and considered and no action was taken because the comment did not present any additional argument that had not already been considered by the Committee in drafting the proposed rules.
Comment:
The school board agrees with the small school and small high school adjustment but more funding is required so it does not take away from the general pool.
Response:
The comment was acknowledged and considered and no action was taken as these regulations have no effect on the amount of current or future appropriations.
Comment:
Several commenters agreed with the Committee's recommendation to offer an adjustment for schools with smaller school populations.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.144 What Is the Small High School Adjustment?
Comment:
The table that accompanies this section should be edited for clarity. We recommend that the first column heading be phrased in the form of a question because the answers that follow are either “yes” or “no.” We suggest, “Does the school receive a small school adjustment under § 39.141?”.
Response:
The Committee acknowledged and considered this comment and changed the table to read, “School receives a small school adjustment under § 39.141.”
Section 39.145 Can a School Receive Both a Small School Adjustment and a Small High School Adjustment?
Comment:
The first sentence of the answer should read, “A school that meets both of the criteria in § 39.140 can receive both a small school adjustment and a small high school adjustment.”
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language was clear.
Comment:
The table that accompanies this section should be revised to make it clearer.
Response:
The Committee acknowledged and considered this comment and changed the table to read 1-50 and 51-98.
Section 39.156 Is There an Adjustment for Small Residential Programs?
Comment:
We object to this provision and request that it be stricken. Residential programs already attract additional weights for residential students. Residential programs that use commercial forms of transportation receive 100 percent reimbursement for transportation costs and therefore receive transportation funding at a higher rate than schools that only use surface bus transportation.
Response:
The comment was acknowledged and considered but the Committee decided that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Section 39.200 What Is the Purpose of the Indian School Equalization Formula?
Comment:
The tribe would like the ISEP week to be changed to either the prior or subsequent week because the current week is American Indian Week, which is a short week for the school, and because students are allowed to participate in cultural activities taking place outside the school and during that week. As a result, many students do not attend that week, resulting in a loss of funding for the school.
Response:
The comment was acknowledged and considered and no action was taken, as funding under the new regulations will be based on Average Daily Membership at schools.
Section 39.203 How Does OIEP Calculate ADM?
Comment:
Paragraph (a) refers to Aperiodic reports' from schools but does not indicate when these reports are to be filed. No provision in part 39 states when ADM reports for academic programs are to be compiled or filed. The frequency must be set out with consideration to technological feasibility and administrative efficiency so that schools are not forced to perform administrative tasks or incur unreasonable expenses that are beyond their resources.
Response:
The comment was acknowledged and considered and no action was taken.
Comments:
Several commenters supported the Committee's recommendation to use Average Daily Membership to count students for the purposes of ISEP academic funding. The Tribe also agrees with the 3-year rolling average. The proposed mechanism would enable the school to better plan and budget for the upcoming school year based primarily on a 3-year rolling average of student enrollment.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.204 How Does OIEP Calculate ISEF?
Comment:
Both the question and answer should be edited. OIEP does not calculate ISEF. It calculates the value of a WSU and then each school's allotment under the ISEF. Paragraph (a) says the 3-year average ADM is to be multiplied by “the weighted student unit that is applicable to eligible students.” At what point is this multiplication made? Is the 3-year average ADM multiplied by some weight total for the current year? If the latter, how would the 3-year average relate to weights assigned to the students for the current year? The terms “supplemental units” and “supplemental weights” are used in this section. One term should be selected and referred to consistently throughout the subpart.
Response:
The Committee acknowledged and considered this comment and added a new question before § 39.203 to read: “When does OIEP calculate a school's allotment? OIEP Calculates a school's allotment no later than July 1. Schools must submit final ADM enrollment figures no later than June 15.” The rule then goes on to keep § 39.203 and then changed § 30.204 to read:
How does OIEP calculate a school's total WSU for the school year? OIEP will add the weights obtained from the calculations in paragraphs (1), (2), and (3) of this section to obtain the total weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted student unit for each grade level;
(2) Calculate any supplemental WSU generated by the students; and
(3) Calculate any supplemental WSU generated by the schools.
The total WSU for the school year is the sum of (1), (2), and (3). The method for calculating the three-year averages WSU is illustrated in a table.
Comment:
Funding should be based on prior year student ADM, so schools will be better able to plan for the upcoming school year regarding calendar days, contract days, and the number of personnel and the budgets they can fund. The 3-year average requirement would make estimating budgets more complicated and confusing.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
The Tribe recognizes the intent of the Committee to ensure that schools are funded up front using the Average Daily Membership method; however, the Tribe proposes using both Average Daily Attendance and ADM in the funding formula. For example, students are counted on the 40th and 100th days, while the ADM formula remains the same.
Response:
The comment was acknowledged and considered but the Committee decided that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Section 39.206 How Does OIEP Determine a School's Funding for the Upcoming School Year?
Comment:
The term “upcoming school year” should probably read “current school year.” The term “this year's” appears in paragraph (f).
Response:
The Committee acknowledged and considered this comment and deleted the term “upcoming year's” from the question and replaced it with “current school year's,” for clarity.
Comment:
The 7-step process outlined here is incomplete and in some places incorrect. A full re-write of the provision is needed. There were also several comments on the terms and references used in this section.
Response:
The Committee acknowledged and considered this comment and changed the process (now located in § 39.207) to read as follows:
To determine a school's funding for the school year, OIEP uses the following seven-step process:
(a)
Step 1.
Multiply the appropriate base academic and/or residential weight from § 39.103 by the number of students in each grade level category.
(b)
Step 2.
Multiply the number of students eligible for supplemental program funding under § 39.107 by the weights for the program.
(c)
Step 3.
Calculate the school-based supplemental weights under § 39.107.
(d)
Step 4.
Add together the sums obtained in steps 1 through 3 to obtain each school's total WSU.
(e)
Step 5.
Add together the total WSUs for all Bureau-funded schools.
(f)
Step 6.
Calculate the value of a WSU by dividing the current school year's funds by the average total WSUs as calculated under step 5 for the previous 3 years.
(g)
Step 7.
Multiply each school's WSU total by the base value of one WSU to determine funding for that school.
Comment:
The cross-reference in paragraph (a) should be to § 39.103.
Response:
The Committee acknowledged and considered this comment and changed the cross-reference to § 39.103.
Section 39.207 How Are ISEP Funds Distributed?
Comment:
Paragraph (b) states that the Act requires the second payment to be made “no later than December 1” and the regulation should reflect this command. As written, the sentence could be interpreted as allowing the December 21 payment to be made after the two recited actions are completed—verification of the school count” and any appeals for the prior year—which could be sometime after December 1. If the second payment were delayed to accommodate these actions the regulation would conflict with the Act. The confusion should be resolved by redrafting. What “school (student)” count is to be verified? Schools are to receive payments based on the average of the prior 3 years' student count, not on the count for the current year. Thus, there would be no count to verify for the December 1 payment.
Response:
The comment was acknowledged and considered, but the Committee decided that it had already considered all of the concerns in the proposed rule. For this reason, no action was taken.
Comment:
The Tribally Controlled Schools Act requires the first payment of funds to be an amount equal to 80 percent of the amount the school was entitled to in the preceding academic year. This needs to be continued. The integrity of the base academic and residential programs should not be eroded by special cost factors.
Response:
The comment was acknowledged and considered, but since the Committee had already considered the concerns raised by comment, no action was taken.
Section 39.208 When May a School Count a Student for Membership Purposes?
Comment:
At the end of the first sentence add “and shall be counted for ADM purposes.”
Response:
The Committee acknowledged and considered this comment and changed the first sentence as suggested.
Comment:
The proposed rules for AYP include using the definitions from the State Accountability Workbook in which the tribally funded school is located. It would be appropriate to provide an option for using the State definition of the term “enrolled student” for the State in which the tribally funded school operates.
Response:
The comment was acknowledged and considered and no action was taken.
Comments:
There were several comments regarding the transition from count week to ADM. One Commenter suggested that the rule seems to omit from the student count students that are enrolled after the 10th day of school regardless of their attendance after that point. This would seem to include transfer students. Another felt the relationship of ADM to being “counted as enrolled” is unclear and as stated does not seem to make sense. It seems that only students who were present during one of the first 10 days of school can be used to calculate ADM no matter how often they are in attendance later on in the year. This does not seem to be true ADM, but is arbitrarily limited. One of the reasons for switching to ADM was to avoid such arbitrary funding calculations.
Response:
The comment was acknowledged and considered and no action was taken because the Committee did not limit ADM to students enrolled the first 10 days of school. The rule allows for a student to be added to the membership and counted for ADM throughout the year.
Comment:
The Tribe agrees with the proposal to stop using “count week” as the way to distribute funding to Bureau schools.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.210 What Other Categories of Students Can a School Count for Membership Purposes?
Comment:
The physical attendance requirement for alternative, Internet, college, and video courses is not real. Students are in these programs because they struggle with attending school regularly. There needs to be another
way of tracking participation, maybe reimbursement for completed courses.
Response:
The comment was acknowledged and considered and no action was taken because the Bureau of Indian Affairs is not authorized to fund satellite schools and because the comment did not present any additional argument that had not already been considered by the Committee in the draft proposed rules.
Section 39.211 Can a Student Be Counted as Enrolled in More Than One School?
Comment:
This section states that a student can be counted in more than one school as long as the student meets the criteria of § 39.208. However, it would seem that the student would be counted as being in two different schools at the same time.
Response:
The comment was acknowledged and considered and no action was taken because the Committee felt the language of the section was clear.
Section 39.213 What Are the Minimum Number of Instructional Hours Required in Order To Be Considered a Full-time Educational Program?
Comment:
Each accreditation agency requires different instructional hours. It would be better to state that if a school is accredited it can receive funding.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.215 How Does ISEF Fund Residential Programs?
Comment:
Edit the second sentence to read “funding for residential programs is based on the average of the 3 previous years” residential WSUs.
Response:
The Committee acknowledged and considered this comment and changed the second sentence as suggested.
Comment:
Residential programs are smaller and have fewer staff than schools. Requiring more documentation and reporting seems overwhelming and discriminating in nature.
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
The existing ISEP formula does not provide adequate funding to operate a residential and boarding school program. The regulations as written will effectively eliminate peripheral dormitories and significantly impact the ability of residential boarding schools to financially survive. The regulations should be revisited to make the necessary corrections to raise the residential and boarding school weights to adequately fund the program. The formula should be adjusted to fund all residential and boarding school students at a base weight of 2.0.
Response:
The Committee acknowledged and considered this comment, however no change was made to the funding formula because the commenters did not present any additional arguments that had not already been considered by the Committee in the draft proposed rules.
Section 39.216 How Are Students Counted for the Purpose of Funding Residential Services?
Comment:
Paragraphs (b) and (c) should be revised to refer to the “first full week in October” in order to be consistent with paragraph (a).
Response:
The Committee acknowledged and considered this comment and changed the paragraphs to refer to the “first full week in October.”
Comment:
While instruction switched to ADM, residential service continues to be funded on a count week; however the average of the previous 3 years would be the count that is used. This decision was probably made due to the wide fluctuations of dormitory attendance due to various factors.
Response:
The comment was acknowledged and considered and no action was taken because there was no suggested change.
Section 39.217 Are There Different Formulas for Different Levels of Residential Services?
Comment:
There were several comments suggesting a discrepancy between § 39.217(c) and § 39.218. Section 39.217(c) states that at least 50 percent of the residency levels established during the count period must be maintained every month for the remainder of the school year. Section 39.218 states that schools must maintain 25 percent of its residency each month to avoid severe financial sanctions. The tribe request that § 39.217(c) be changed to 25 percent to retain continuity in the rule.
Response:
The comment was acknowledged and considered but the Committee decided that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Comment:
Section 39.216 establishes a 3-week count period for residential programs. Did the Committee intend to add the weekend before the 3-week period for the purposes of qualifying for residential funding?
Response:
This comment was acknowledged and considered and no action was taken.
Comment:
Several commenters suggested changes to the table. One suggestion was that the table should be revised to read (in either table or sentence form): “If a residential program operates 4 nights per week or fewer, the weight for each residential student shall be obtained by multiplying each student's base residential factor for the appropriate grade, as set out in § 39.103, by 4/7.” “If a residential program operates 5, 6 or 7 nights per week, the weight for each residential student shall be obtained by multiplying each student's base residential factor for the appropriate grades, set out in § 39.103 by 7/7.”
Another suggestion asked this question about paragraph (b): This paragraph requires at least 10 percent of the students in a residential program to be in the dormitory 3 of the 4 weekends during the count period. Is this correctly stated or should it read, “2 of the 3 weekends during the count period?”
Response:
These comments were acknowledged and considered and no action was taken.
Comment:
There were several comments seeking clarification of the weekend services. One commenter suggested if a residential program only intends to serve students 4 nights per week and receives funding for only 4 nights, is it nonetheless expected to serve 10 percent of its students over the weekend?
Another commenter suggested the different treatment for dormitories that are open 5, 6, or 7 days from those open 4 nights a week will likely have the effect of more dormitories staying open on weekends or at least, being open on Sunday evening for returning students. The effect of this change will be a shift of funding from day schools to boarding schools. Even within boarding schools, a greater portion of costs will shift to residential programs and away from instruction.
Response:
The comment was acknowledged and considered but the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.218 What Happens if a Residential Program Does Not Maintain Residency Levels Required by This Part?
Comments:
Several commenters had questions pertaining to this section of the rule. One commenter asked, “the penalty stated for failing to meet the minimum retention requirement each month is the loss of one-tenth of * * *
current year allocations. Since the school year runs for ten months, the penalty is a full month's worth of funding. How can such a program stay in operation for the month if it loses full funding for that month? Does the Committee intend that the dormitory would close? If that occurs, it is unlikely the dorm would reopen in the following month. How is the loss of funding to be implemented? Since the Act requires contract and grant schools to be paid in advance, does the Committee contemplate that the Bureau would send a bill for collection?”
Response:
The comment was acknowledged and considered, but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
The requirement that monthly residential reports be filed on the last school day of a month will likely pose an administrative difficulty for OIEP at the end of each year. Many schools do not complete their school year until sometime in June. Even if all residential programs file timely reports for the month of June, it is possible that OIEP will have only a few business days left in June to make the calculations needed to distribute the July 1 payment for the next academic year.
Response:
The comment was acknowledged and considered and no action was taken because OIEP felt they would be able to make the calculations based on these timeframes.
Comment:
Provisions should be made for circumstances that might temporarily close all or part of a dorm and prevent that program from meeting the 10 nights/students/month minimum. Examples of these circumstances are: (1) students absent due to an illness or injury and (2) unforeseen circumstances, such as a flu epidemic or health/safety situations.
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt this issue was addressed in § 39.217(d).
Comment:
When referencing the use of counts obtained from the current system in the table, the term “count weeks” should be used to differentiate from the proposed new system for residential counts, which will occur over a 3-week period. In row (c) of the table “systems or” should be replaced with “residential and academic programs are.”
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.219 What Reports Must Residential Programs Submit To Comply With This Rule?
Comment:
A student must be in residence at least 10 nights during each full school month in order to be counted. Does this mean that months such as August, December, and June are not considered a “full school month” and would not have to achieve the 10-night minimum? It would be helpful to expressly list in the regulation the calendar months that are considered “full school months” for the purpose of the 10-night minimum.
Response:
The Committee acknowledged and considered this comment and added a new question after § 39.219. The new question reads, “What is a full school month?” The answer is “Each 30-day period following the first day residential services are provided to students based on the school residential calendar.”
Section 39.220 How Will the Provisions of This Subpart Be Phased In?
Comment:
The answer should be reworded to read “The calculation of the 3-year rolling average of ADM (WSU) for each school and for the entire Bureau-funded school system will be phased in as shown in the following table.”
Response:
The Committee acknowledged and considered this comment and changed the answer to the language in the comment.
Section 39.400 What Is the Purpose of This Subpart?
Comment:
This section, combined with § 39.409, adds more bureaucracy and additional expenses to OIEP. It is not necessary to hire independent auditors because it creates mistrust. Funds are wasted by implementing an external audit on the certified count.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
This provision should be edited to read: “ The purpose of this subpart is to establish systematic verification and random independent outside auditing procedures to hold administrative officials and the school board, or tribal officials having responsibility for student count and student transportation expenditures reporting, accountable for accurate and reliable performance of these duties. The subpart establishes systematic verification and random independent outside auditing procedures to accomplish this goal.”
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
The School Board wants to know how the Bureau would get a refund from a grant school if the school was overfunded.
Response:
The comment was acknowledged and considered and no action was taken as the statute clearly outlines how the Bureau is to collect overpayments.
Section 39.403 What Certification Is Required?
Comments:
Several commenters asked what teacher certification and school accreditation have to do with individual student records. This is not an ISEP requirement.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
As written, paragraph (c) is meaningless. It should identify precisely the certifications required for ELO, specialists, and school superintendents so that a competent review of compliance with the requirement to maintain such certifications can be made. In addition, the provision should require that the certifications of personnel be maintained and available for inspection at the office in which they work as well as in a “central location.”
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
It should be clarified that for the purposes of confidentiality that Special Education files may be maintained in a separate location per IDEA and FERPA.
Response:
The comment was acknowledged and considered and no action was taken because these regulations are subject to IDEA and FERPA, which have their own regulations addressing such issues.
Comment:
The change in accountability of student eligibility and attendance is a good step. The commenter agrees that all schools should maintain files and certify their accuracy relating to documentation of student eligibility to receive base and supplemental services. The concept of holding each Bureau education line officer accountable for this shows an attempt to improve Bureau's level of service.
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
Paragraphs (a) and (b) should specify when the required certifications must be made and submitted. Is this a one-time-per-academic-year requirement? If so, when must the requirement be satisfied? If this certification is a periodic requirement, state the frequency.
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
When will the ELOs annual reviews be conducted? At the beginning or end of the academic year? Periodically throughout the year?
Response:
The comment was acknowledged and considered and no action was taken because the Committee felt that § 39.405 answered this question.
Comment:
Clarification is needed as to who will pay for the outside audits the Director is to conduct.
Response:
The comment was acknowledged and considered and no action was taken because the Committee felt the regulation was clear.
Section 39.405 How Will Verifications Be Conducted?
Comments:
There were several comments on the timing of verification. One commenter suggested the first two sentences seem to address verification of the academic count, and require a minimum of one day per grading period to be included in the verification survey. Does this mean that the verifications cannot be made until the end of the year when all the grading periods have been completed?
Another commented that the last sentence relates to verification of the residential count. Verification of the count for the count period makes sense, but there is no statement when that verification will occur. Since the regulations do not establish a time for submitting the residential count, it is impossible to tell when the verification will take place. Also, what method and frequency will the ELO use to verify residence during the remainder of the year?
Response:
The comment was acknowledged and considered and no action was taken because the Committee felt that the regulation clarified that this was an ongoing process.
Section 39.406 What Documentation Must the School Maintain for Additional Services It Provides?
Comment:
Services from certified education personnel should not be required.
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
The requirement of physical attendance at the school for at least 3 hours per day may restrict students from fully participating in college-based advanced placement opportunities for more than half of an ordinary school day. This would impede the ability of some highly capable students to receive full dual high school and college credit from the many State programs. An arbitrary restriction of 3 hours per day in physical attendance is not consistent with the Bureau's post-secondary placement goals.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.407 How Long Must a School Maintain Records?
Comment:
Records retention should be for only 3 years.
Response:
The comment was acknowledged and considered and no action was taken because all records are subject to Federal records retention timeframes.
Section 39.409 How Does the OIEP Director Ensure Accountability?
Comment:
In paragraph (a)(1), the purpose of the audit is clearly intended to be an audit of education line officer performance. But in (b)(1) and (2), the auditor tasks relate to the accuracy of the school's reports, rather than to the integrity of the ELO's review. Paragraph (b) should be revised to make it clear that it is the ELO's performance that is under review.
Response:
The Committee acknowledged and considered this comment and changed the answer to reflect the language in the comment.
Comment:
This section, read in conjunction with § 39.400, adds more bureaucracy and additional expenses to OIEP. It is not necessary to hire independent auditors because it creates mistrust. Funds are wasted by implementing an external audit on the certified count.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
Paragraph (a)(1): Who will decide which school in each OIEP line office is selected for the random filed audit each year? There should be a method to ensure that contract, grant, and Bureau-operated schools in a line office are selected over time, and that the same school is not “randomly” selected for repeated audit. If such were to be permitted, a line offer's model school could be routinely selected.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Comment:
This section calls for an independent audit of at least one school per line officer per year. This would be over 20 audits per year to be done at Central Office expense. This could become an unfunded mandate, as there has been little or no interest in increasing funding for Bureau education administration. If this is the key to accountability, then it needs to be in the FY 2005 or 2006 budget request.
Response:
The comment was acknowledged and considered and no action was taken as this regulation has no impact on budget requests.
Comment:
This section establishes criteria for auditing firms and calls for licensed CPAs who audit under Single Audit Act. This does not seem appropriate since this is not an audit of accounting procedures. This is an audit of student counting and should call for consulting firms that are expert in such procedures and familiar with the classifications that result in student weights.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.412 What Sanctions Apply for Failure To Comply With This Part?
Comment:
Paragraph (b) is intended to ensure that Bureau and school administrative officials are held to account for actions described in paragraph (a), but the phrase “unless prohibited by law” could defeat the sunlight the provision seeks to ensure. Bureau should provide the Committee with a legal opinion on the question whether Federal law permits or prohibits performance deficiency personnel actions involving Federal employees to be reported to the affected tribal governing body. If Federal law would prohibit such reporting, this provision is meaningless with regard to Federal employees and would apply only to contract and grant school employees. The Committee should determine if such an outcome is supportable.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.413 Can a School Appeal the Verification of the Count?
Comment:
This provision does not state when disallowances would be made nor when they will be communicated to the affected school. Nor does it set out a time period for the appeal.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.500 What Emergency and Contingency Funds Are Available?
Comment:
Paragraph (a) says the reserved amount is to be “1 percent of funds from the allotment formula.” This is not a precise description of the funds involved. It should be re-written to reflect the Act (25 U.S.C. 2007).
Response:
The comment was acknowledged and considered and no action was taken as the Committee felt the language in the proposed rule was sufficient.
Section 39.501 What Is an Emergency or Unforeseen Contingency?
Comment:
This section requires that all criteria in paragraphs (a) through (e) be met to qualify for contingency funds. Paragraphs (c) and (e) should be revisited by the Committee. Paragraph (c) would eliminate any event that could have been covered by an insurance policy. This is objectionable, as in theory; nearly any event could be covered by an insurance policy if one is willing to pay the premium for the coverage. Paragraph (e) requires someone (OIEP Director) to make a very subjective judgment as to whether the event could have or have not been prevented by prudent action by officials responsible for the education program. The presence of these two provisions in the regulation could prevent any event from qualifying for contingency funds.
Response:
The Committee acknowledged and considered this comment and changed paragraph (c) to read “It is not covered by an insurance policy in force at the time of the event.”
Comment:
The section states the criteria for identifying what the contingency fund can be used for and indicates that the fund cannot be used in cases of mismanagement, malfeasance, or willful neglect. While it is clearly not the intent of the fund to cover such costs, the Bureau needs to be ready for situations where a school has been grossly mismanaged and there has been a resumption or other change in management late in the year and little or no funding remains in the school's budget. There is probably no other source of funds in such a situation.
Response:
The comment was acknowledged and considered and no action was taken as the comment did not suggest a change to the rule.
Section 39.502 How Does a School Apply for Contingency Funds?
Comment:
The final sentence must be revised to provide that the Director will respond to the request for contingency funds “within 30 days or receipt of request.” The provision should also allow a school to send a request for contingency funds directly to the Director, with a copy to the ELO. This is needed to ensure that a school's request reaches the Director even if the ELO fails to forward it to the Director within 48 hours as required by this section.
Response:
The comment was acknowledged and considered but the Committee decided that the comments did not raise concerns that the Committee had not already considered in the proposed rule and therefore no action was taken.
Section 39.504 May Contingency Funds be Carried Over to a Subsequent Fiscal Year?
Comment:
Add a second sentence: “Contingency funds provided to a contract or grant school shall be available for expenditures without fiscal year limitations.”
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
This states that Bureau operated schools may carry over contingency funds to the next fiscal year. Has it been researched and verified that this is possible?
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.600 Are Bureau-Operated School Board Expenses Funded by ISEP Limited?
Comment:
The school board does not believe money should be used for school board expenses and training because it will take away from student funding.
Response:
The comment was acknowledged and considered and no action was taken as the school board is authorized by statute to use these funds.
Comment:
The Tribe agrees with proposed rules on school board training.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.602 Can Grant and Contract Schools Spend ISEP Funds for School Board Expenses, Including Training?
Comment:
There were several comments discussing which funds should be used for school board training.
Response:
The Committee acknowledged and considered this comment and deleted § 39.602 after determining it was unnecessary.
Section 39.603 Is School Board Training Required for All Bureau-Funded Schools?
Comment:
The answer to this question is incomplete as it does not reflect the statutory provision at 25 U.S.C. 2007(c)(2)(B)(iii) which recommends, but does not require, training for a tribal council that serves as a school board. The provision should be revised as follows: “Yes. Any new member of a local board or an agency school board must complete 40 hours to training within one year of appointment, provided that such training is recommended, but is not required, for a tribal governing body that serves in the capacity of a school board.”
Response:
The Committee acknowledged and considered this comment and changed the answer to read, “Yes. Any new member of a local school board or an agency school board must complete 40 hours of training within one year of appointment, provided that such training is recommended but is not required, for a tribal governing body that serves in the capacity of a school board.”
Section 39.700 What Is the Purpose of This Part?
Comment:
Subpart G should be revised to read “Student Transportation.”
Response:
The Committee acknowledged and considered this comment and made the suggested change.
Comment:
This question should be revised to read “What is the purpose of this subpart?”
Response:
The Committee acknowledged and considered this comment and made the suggested change.
Comment:
Paragraph (a) does not expressly state that a school will receive funding for student transportation. Proposed revision: “(a) The purposes of this subpart are to provide funds to each school for the round trip transportation
of students between home and school, and to describe how transportation mileage and expenses are to be calculated and reported.”
Response:
The comment was acknowledged and considered and no action was taken.
Comment:
The tribe supports the proposed rules regarding transportation but recommends that schools be funded for two curricular enrichment activities as a part of the outdoor education programs.
Response:
The comment was acknowledged and considered but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.701 What Definitions Apply to Terms Used in This Subpart?
Comment:
ISEP count week is defined but that method for counting students would be replaced with the 3-year rolling average. Perhaps the term and its definition should be changed to “transportation mileage count week” since the last full week in September would be used to count mileage only. If this revision is made, the new term must be reflected elsewhere in the subpart.
Response:
The Committee acknowledged and considered this comment and made the suggested changes.
Comment:
Is the definition of “unimproved roads” consistent with the current usage where “unimproved roads” generate additional weight for mileage count? If a road has a drainage ditch but is unpaved, it would not meet the stated definition.
Response:
The comment was acknowledged and considered, but the Committee decided that the comments raised concerns that the Committee had already considered in the proposed rule and therefore no action was taken.
Section 39.704 Are Schools Eligible for Other Funds To Transport Residential Students?
Comment:
If this provision is intended to apply only to expenses incurred in transporting residential students by commercial carriers, the question and answer should be revised to so state.
Response:
The Committee acknowledged and considered this comment changed the question to read, “Are schools eligible to receive chaperone expenses to transport residential students?”
Section 39.705 Are Schools Eligible for Other Funds To Transport Special Education Students?
Comment:
The term “other funds” in the question is misleading. Suggested rephrase: “Under what circumstances may a school count mileage incurred in transporting special education students?” The answer seems to be contradicted with § 39.707(a)(3).
Response:
The Committee acknowledged and considered this comment and changed the question to read “Are schools eligible for transportation funds to transport special education students?”
Comment:
It would be better to identify what school bus transportation is allowable and count all of it and then request appropriations. If you say these are not fundable then Congress will never fund them.
Response:
The Committee acknowledged and considered this comment and changed the question to read “Which student transportation expenses are currently not eligible for Student Transportation Funding?” The answer was also changed to read “The following transportation expenses are currently not eligible for transportation funding, although the funding will be collected under the provisions in this subpart.”
Section 39.708 Are Non-ISEP Eligible Children Eligible for Transportation Funding?
Comment:
There were several comments suggesting changing the language of this section to reflect the fact that transportation funding is based on miles, not students. There were also comments on the language referring to the transport of non-ISEP eligible students.
Response:
The Committee acknowledged and considered these comments and changed this section to read, “Are miles generated by non-ISEP eligible students eligible for transportation funding? No. Only miles generated by ISEP eligible students enrolled in and attending a school are eligible for student transportation funding.”
Section 39.710 How Does a School Calculate Annual Bus Transportation Miles for Day Students?
Comment:
When is ISEP count week?
Response:
The Committee acknowledged and considered this comment and changed this section to refer to “student transportation count week”.
Sections 39.720-722 [Various Titles]
Comment:
There were several comments on the limitations of trips outlined in the chart.
Response:
The Committee acknowledged and considered this comment and deleted the chart.
Section 39.721 What Transportation Information Must Off-reservation Boarding Schools Report?
Comment:
There were several comments on the need for additional clarity in this section.
Response:
The Committee acknowledged and considered this comment and changed this section to read as follows:
What transportation information must off-reservation boarding schools report?
(a) Each off reservation boarding school that provides transportation must report annually the information required by this section. The report must:
(1) Be submitted to OIEP by August 1 and cover the preceding school year;
(2) Include a Charter/Commercial and Air Transportation Form signed and certified as complete and accurate by the School Principal and appropriate ELO; and
(3) Include the information required by paragraph (b) of this section.
(b) Each annual transportation report must include the following information:
(1) Fixed vehicle costs, including: the number and type of busses, passenger size and local GSA rental rate and duration of GSA contract;
(2) Variable vehicle costs;
(3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
(4) Medical trips;
(5) Maintenance and Service costs;
(6) Driver costs; and
(7) All expenses referred to in § 39.707.
Section 39.722 What Transportation Information Must Day Schools or On-reservation Boarding Schools Report?
Comment:
The question should be edited to read “What transportation program information must day schools, on reservation boarding schools, and peripheral dormitories report?”
Response:
The Committee acknowledged and considered this comment and changed the question as suggested.
Comment:
Paragraph (b) should be edited for clarity. For example, all of the information requested in paragraph (b)(1) is useful, but all elements do not constitute “fixed vehicle costs.” Some of the information sought is descriptive of the vehicles used not their costs.
Response:
The Committee acknowledged and considered this comment and changed paragraph (b) to add the term “and other costs.”
Comment:
Paragraph (b)(4) should be revised to read “mileage driven to student medical trips” and (b)(5) should be revised to read “costs of vehicle maintenance and
service, including cost of miles driven to obtain maintenance and service.”
Response:
The Committee acknowledged and considered this comment and changed these sections to read (b)(4) “Mileage driven for student medical trips” and paragraph (b)(5) to read, “Costs of vehicles maintenance and service costs including cost of miles driven to obtain maintenance and service.”
Section 39.730 Which Standards Must Student Transportation Vehicles Meet?
Comment:
There were two comments suggesting tribal standards be incorporated into this section.
Response:
The Committee acknowledged and considered this comment and changed this section to include “State or tribal motor vehicle safety standards.”
Section 39.732 How Does OIEP Allocate Transportation Funds to Schools?
Comment:
Change “OIEP allocates transportation miles” to “OIEP allocates transportation funds.”
Response:
The Committee acknowledged and considered this comment and changed the section to read “OIEP allocates transportation funds.”
Section 39.801 What Is the Formula to Determine the Amount Necessary to Sustain a School's Academic or Residential Program?
Comment:
Paragraph (a), “minimal annual amount” should read “minimum annual amount.” The formula should read “Student Unit Value × weighted Student Unit = Annual Minimum amount per student.”
Response:
The Committee acknowledged and considered this comment and changed the sections as suggested.
Comment:
This would provide useless information for a useless report and should be eliminated.
Response:
The comment was acknowledged and considered and no action was taken.
Section 39.802 What Is the Student Unit Value in the Formula?
Comment:
The first sentence should be revised to read “The student unit value is the dollar value applied to each student in an academic or residential program.”
Response:
The Committee acknowledged and considered this comment and changed the section as suggested.
Comment:
Revise to read “(a) The student unit instructional value (SUIV) applies to a student enrolled in an instructional program. It is an annually established ratio of 1.0 that represents a student in grades 4-6 of an instructional program.”
Response:
The Committee acknowledged and considered this comment and changed the section as suggested.
Section 39.804 How Is the SUIV Calculated?
Comment:
Additional instructions are needed to describe the calculation in this part.
Response:
The Committee acknowledged and considered this comment and made the following changes:
(b) Step 2. Subtract the average specific Federal share per student (title I part A and IDEA, part B) of the total revenue for Bureau-funded elementary schools for the last school year for which data is available as reported by NCES (15 percent)
(c) Step 3. Subtract the administrative cost grant/agency area technical services revenue per student as a percentage of the total revenue and current expenditures of Bureau-funded schools from the last year data that is available
(d) Step 4. Subtract the day transportation revenue per student as a percentage of the total revenue (current revenue) Bureau-funded schools for the last school year, for which the date is available.
Section 39.805 What Was the Student Unit for Instruction Value (SUIV) for the School Year 1999-2000?
Comment:
What was the student unit for instruction value (SUIV) for the school year 1999-2000? Revise the first sentence to read: “The process described in § 39.804 looks like this, produces the following results using figures for the 1999-2000 school year: $8,030 ANACE 1205 Average per student specific Federal share of total revenue for Bureau of Indian Affairs-funded schools, 993 Administrative Cost grant/technical services revenue as a percentage of total revenue, 658 Transportation revenue as a percentage of the total revenue, 85 Johnson O'Malley funding 5259 SUIV.”
Response:
The Committee acknowledged and considered this comment and changed the section to read:
Section 39.805 What Was the Student Unit for Instruction Value (SUIV) for the School Year 1999-2000?
The process described in § 39.804 is illustrated in the table below, using figures for the 1999-2000 school year:
Step 1: $8,030 ANACE
Step 2: −1205 Average specific Federal share of total revenue for Bureau-funded schools
Step 3: −993 Cost grant/technical services revenue as a percentage total revenue
Step 4: −658 Transportation revenue as a percentage of the total revenue
Step 5: 85 Johnson O'Malley funding
Total: $5,259 SUIV
Section 39.806 How Is the SURV Calculated?
Comments:
There were several comments on this section. Paragraph (b) refers to a procedure but no procedure is set out.
Response:
The comments were acknowledged and considered and no action was taken.
VI. Comments on Part 42—Student Rights
25 U.S.C. 2016 requires the Secretary to prescribe rules to ensure the Constitutional and civil rights of Indian students attending Bureau-funded schools, including rights to privacy, freedom of religion and expression, and due process in connection with disciplinary actions, suspension, and expulsion. As was the case with the proposed rule, the intent of this final rule is to provide minimum requirements for fulfilling due process and student rights obligations owed to students while allowing schools to provide for higher requirements and to develop their own processes for handling violations of school policies, including alternative dispute resolution where appropriate. The final rule changes the proposed rule by including a new section on when a formal disciplinary hearing is required.
General Comments:
Some commenters agreed with the proposed rules in part 42 and one commenter noted with approval the alternative dispute resolution provisions.
Comment:
Revise part 42.2 to set a threshold for disciplinary actions that require a due process hearing. Limit the hearing requirement to cases where potential disciplinary action is suspension for more than 10 days or expulsion and expressly state it in the rules.
Response:
We deleted in § 42.2(c) “for alleged violation of school regulations for which the student may be subjected to penalties” after “disciplinary actions.” In order to set a threshold for requiring disciplinary hearings and to provide for local school policies and procedures, we added a new section: “When does due process require a formal disciplinary hearing? Unless local school policies and procedures provide for less, at a minimum, a formal disciplinary hearing is required prior to a suspension in excess of 10 days or expulsion.”
Comment:
Include in part 42.2 information from the Notice of Proposed Rulemaking Preamble to part 42 to provide more information on the purpose of § 42.2.
Response:
We added a new question and answer setting a threshold for requiring disciplinary hearings and providing for local school policies and procedures which may require more than the minimum set out in § 42.2. (see response above)
Comment:
Add to part 42 a provision addressing notices of disciplinary action in Native languages and providing for an interpreter at hearings.
Response:
We did not add a provision addressing notices in Native languages or interpreters at hearings because these issues can be addressed at the local school level as needed.
Comment:
Revise part 42 to allow schools to set due process procedures that address both tribal and legal precedents and provide for legal counsel only after these processes are completed.
Response:
We did not make the suggested changes because § 42.7 (now § 42.8) provides for the right to legal counsel only at the formal disciplinary hearing stage, not before it. In addition, § 42.2 provides for use of applicable tribal constitutional and statutory protections and does not preclude use of tribal precedents.
VII. Comments on Part 44—Grants Under the Tribally Controlled Schools Act
Part 44 provides rules to comply with 25 U.S.C. 2501
et seq.
, the Tribally-Controlled Schools Act of 1988 (TCSA). The Act included a new section 25 U.S.C. 2509 which provides that, “the Secretary is authorized to issue rules relating to the discharge of duties specifically assigned to the Secretary in this part.” This rule provides that Bureau of Indian Affairs manuals, guidelines, and policy directives apply only if the grantee agrees. This rule provides eligibility requirements and methods for termination. It incorporates subpart E, part 900, 25 CFR for standards on financial, property, and procurement management. The final rule amends the proposed rule provision for method for payment to an annual payment. We said in preamble to NPRM we were changing payments to once a year.
General Comments:
One commenter states that this part is under-funded. A commenter agrees that the TCSA needs little or no adjustment. A commenter agrees with grant payments in July and December.
Comment:
Provide for holding grant schools accountable after the annual payment is issued.
Response:
The Tribally-Controlled Schools Act covers this. We made no changes.
Comment:
Provide guidance for the Bureau for its role as the responsible Federal agency under the Single Audit Act.
Response:
No change is necessary. The comment is based on a misunderstanding of the rule.
Comment:
Clarify the Bureau's significant role with Bureau-funded schools and the Memorandum of Agreement between Bureau and the Department of Education (DOE) for Bureau's administering of funds that come through DOE.
Response:
No change was made. The comment is based on a misunderstanding of the rule.
Comment:
Revise § 44.101 to add a new (a): “The Tribally Controlled Schools Act” and reformat the remaining paragraphs as (b) and (c).
Response:
The change was made for clarity.
Comment:
Revise § 44.101 because the Secretary is bound also by Public Law 100-297 and appropriations laws.
Response:
No change is necessary. The comment is based on a misunderstanding of the rule.
Comment:
Revise § 44.104 to change “resumption” to “reassumption”, change “BIA” to “the Secretary”, and change “tribe” to “the tribal governing body.”
Response:
We changed § 44.104(c) to read as follows:
§ 44.104 How Can a Grant Be Terminated?
A grant can be terminated only by one of the following methods:
(a) Retrocession;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by the Secretary.
Comment:
Revise duplicative portions of § 44.106 and revise to complete statement of requirements of 25 U.S.C. 2505(c).
Response:
No change is necessary because 25 U.S.C. 2001 covers this issue.
Comment:
In § 44.106 add a new section to add the conditions for corrective action for a grant school that fails to become accredited by January 8, 2005.
Response:
No change is necessary because 25 U.S.C. 2001 covers this issue.
Comment:
In §§ 44.106 and 44.107 include guidance for the Bureau and tribes for dealing with problems grant schools have had regarding eligibility.
Response:
The comment suggests discussions that are not relevant to this rule. No change was necessary.
Comment:
Revise the question in § 44.107 to read: “Under what circumstances may the Secretary reassume a program?”
Response:
The change was made for clarity.
Comment:
Revise the answer in § 44.107 to read: “The Secretary may only reassume a program in compliance with 25 U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board shall have a right to appeal the reassumption pursuant to 25 CFR part 900, subpart L.”
Response:
The answer was revised as suggested for clarity.
Comment:
In § 44.108 the citation to the Prompt Payment Act needs legal review.
Response:
No change was made. The comment is based on a misunderstanding of this section.
Comment:
Revise § 44.108 to include funding available under continuing resolutions.
Response:
No change was made. The comment is not relevant to the rule.
Comment:
Revise §§ 44.108 and 47.3 for consistency on date for notification of funding.
Response:
This cannot be done because the Act includes two different dates.
Comment:
Revise § 44.109 to include that the grantee should have the right to appeal the assertion that an overpayment occurred and appeal the amount of overpayment claimed.
Response:
Section 44.109 was revised to delete that the grantee must return the overpayment within 30 days of notification of an overpayment. The grant recipient has 30 days after the final determination that an overpayment occurred to return the amount of the overpayment.
Comment:
In § 44.109 clarify whether it is procedurally possible for the Bureau to receive the overpayments to grant schools and redistribute them.
Response:
No change was made. The comment is based on a misunderstanding of the rule.
Comment:
In § 44.110(a) add a new “(6)” to read: “Subpart L: Appeals.”
Response:
This change was not made because it was not needed. In (b)(5) “our” was changed to “the Secretary's” for clarity.
VIII. Comments on Part 47—Uniform Direct Funding and Support for Bureau-Funded Schools
25 U.S.C. 2010 requires the Secretary to establish by regulation a system for the direct funding and support of all Bureau-funded schools that allots funds under 25 U.S.C. 2007. The existing rule in 25 CFR 39.50 adequately covered this issue and it was edited for plain language with no substantive changes for the proposed rule. There are no substantive changes to the final rule.
General Comments:
Some commenters agreed with the proposed rules at part 47. One commenter questioned the allocation percentage mentioned in the Preamble to the proposed part 47.
Comment:
Standardize use of terms “local financial plan” and “local educational financial plan” throughout part 47 by using “local financial plan” as in 25 U.S.C. 2010(b).
Response:
We changed “local financial plans” to “local educational financial plans” in part 47 for clarity.
Comment:
Delete part 47 as unnecessary because part 47 ignores grant schools, referring only to Bureau-operated and contract schools.
Response:
We did not delete part 47 because part 47 is necessary to describe uniform direct funding and support for Bureau-funded schools. We changed the title of this part to add “for Bureau-funded Schools.”
Comment:
Change “schools” in part 47 to “Bureau-operated schools” because Bureau-operated schools are the only schools required to prepare local financial plans under the relevant statute, 25 U.S.C. 2010(b).
Response:
We changed the title of part 47 to “Uniform Direct Funding and Support for Bureau-Operated Schools” and changed all references to schools in part 47 to “Bureau-operated schools” for clarity. We deleted the definition of “school” in the definitions in § 47.2.
Comment:
Change the October 1 date in § 47.12 because 25 U.S.C. 2010(a)(2)(A)(i) states that funds shall become available July 1 of the fiscal year for which funds are appropriated.
Response:
We deleted in its entirety § 47.12 on how funds are obligated because it is unnecessary. 25 U.S.C. 2010(a)(2)(A)(i), the Indian Affairs Manual, and 25 CFR part 900 cover the issue.
Comment:
Change “school boards” to “Bureau-operated school boards” in the definition of “Consultation” in part 47 because Bureau-operated school boards are the only school boards required to prepare local financial plans.
Response:
We made the suggested change to add “Bureau-operated” before “school boards.”
Comment:
Add a definition of “school board” to refer only to “Bureau-operated school board” because only Bureau-operated school boards are the only schools required to prepare local financial plans.
Response:
We did not add a definition of “school board” because we changed references to “school board” to “Bureau-operated school board” for clarity.
Comment:
Make dates consistent in § 47.3 and § 44.108 on notification of funding.
Response:
We made no change because there is no inconsistency.
Comment:
Change “all funds” to “80 per cent of the funds” in § 47.4 to comply with 25 U.S.C. and change the reference to which fiscal year funding is available from “that fiscal year that begins on the following October 1st” to, “for the fiscal year that began on the preceding October 1” because as written it implies that OIEP will distribute funds before they are appropriated.
Response:
We made the suggested change.
Comment:
Change the question in § 47.6 to refer to “records of local financial plans.”
Response:
We did not make the suggested change because it was not necessary for clarity.
Comment:
Strike the reference to “contract schools” because contract schools are not required to prepare local educational financial plans.
Response:
We deleted the reference to “contract schools.” We also changed the requirement for certification from the “Agency Superintendent of Education” to “Education Line Officer” to reflect the current designation for that position.
IX. Procedural Matters
Regulatory Planning and Review (E.O. 12866)
This document is a significant rule and the Office of Management and Budget (OMB) has reviewed this rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule deals exclusively with student rights, does not pertain to funding, and is not expected to have an effect on budgets.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule has been prepared in consultation with the Department of Education.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule spells out student rights, the procedures for their dissemination, and the procedures for implementing them. The rule does not pertain to funding and is not expected to have an effect on budgets.
(4) This rule raises novel legal or policy issues. The rule proposes entirely new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.
). Funding for Indian education programs has averaged about $350 million in grants annually over the last ten years. The Act, which these proposed rules are designed to implement, will provide no additional funding, but merely reallocates current funding. Since grants redistribute wealth, they have no impact on aggregate employment and prices unless the allocation of the grant money produces incentives that result in an employment, income, or price effect in excess of $100 million annually. Although the purpose of this rule is to change the formula for distributing grant money, Bureau does not have sufficient information to evaluate the extent to which the proposed regulation may change the incentives associated with new proposed formula. However, based on the new proposed formula, school districts may face incentives to report or count students differently than under the existing formula. Regardless of the extent to which incentives may shift, the Secretary believes that the changes would not result in changes in employment, income, or prices in the economy.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million or more on budgets.
(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The rule does not pertain to funding and is not expected to have an effect on budgets. The rule is not expected to have a perceptible effect on costs or prices.
(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights
and adapts the existing rules to comply with current law and policy. The rule does not pertain to funding and is not expected to have an effect on budgets.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The procedures for dissemination of student rights through student handbooks are consistent with current practices. The procedures for implementing student rights through hearings and alternative dispute resolution processes are consistent with current practices. The rule is not expected to mandate additional costs on tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have significant takings implications. Nothing in the rule proposes rules of private property rights, constitutional or otherwise, or invokes the Federal condemnation power or alters any use of Federal land held in trust. The focus of this rule is civil rights and due process rights. A takings implication assessment is not required.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Nothing in this rule has substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule does not implicate State government. Similar to federalist concepts, this rule leaves to local school board discretion those issues of student civil rights and due process that can be left for local school boards to address. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Consultation With Indian Tribes (E.O. 13175)
In accordance with Executive Order 13175, we have identified potential effects on federally recognized Indian tribes that will result from this rule. This rule will require tribally operated schools to observe student rights and procedures spelled out in the rule. Accordingly:
(1) We have consulted with the affected tribes on a government-to-government basis. The consultations have been open and candid to allow the affected tribes to fully evaluate the potential effect of the rule on trust resources.
(2) We have fully considered tribal views.
(3) We have consulted with the Office of Indian Education Programs and the Office of the Assistant Secretary—Indian Affairs have been consulted about the political effects of this rule on Indian tribes.
Paperwork Reduction Act
This rulemaking requires information collection from 10 or more parties and a submission under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
) is required. Accordingly, the Department prepared submissions on these collections for review and approval by OMB. Having reviewed the Department's submissions, along with any comments that were submitted by the reviewing public, OMB has approved the information collection requirements contained in this rulemaking and has assigned the OMB control number 1076-0163. In addition to this number, the information collections in part 39 are also covered by OMB control numbers 1076-0134 and 1076-0122.
The information collected will be used to enable the Bureau to better administer Bureau-funded schools subject to this rulemaking. In all instances, the Department has striven to lessen the burden on the public and ask for only information essential to administering the programs affected and to carrying out the Department's fiduciary responsibility to federally recognized tribes. The public may make additional comments on the accuracy of our burden estimates (which are explained in detail in the preamble to the proposed rule published on February 25, 2004, at 69 FR 8752) and any suggestions for reducing this burden to the OMB Interior Desk Officer, Docket Number 1076-AE49, Office of Information and Regulatory Affairs, 202/395-6566 (facsimile); e-mail:
oira_docket@omb.eop.gov.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.
List of Subjects
25 CFR Parts 30, 37, 39, 44, and 47
Elementary and secondary education programs, Government programs—education, Grant programs—Indians, Indians—education, Schools.
25 CFR Part 42
Elementary and secondary education programs, Indians—education, Schools, Students.
Dated: April 20, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary—Indian Affairs.
For the reasons given in the preamble, the Bureau of Indian Affairs amends parts 30, 37, 39, 42, 44, and 47 of title 25 of the Code of Federal Regulations as follows:
1. New part 30 is added to subchapter E to read as follows:
PART 30—ADEQUATE YEARLY PROGRESS
Sec.
30.100
What is the purpose of this part?
30.101
What definitions apply to terms in this part?
Subpart A—Defining Adequate Yearly Progress
30.102
Does the Act require the Secretary of the Interior to develop a def
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