Grants to Tribally Controlled Community Colleges and Navajo Community College

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 41

RIN 1076-AD08

Grants to Tribally Controlled Community Colleges and Navajo

Community College

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) is proposing to revise part

41 to improve the clarity of the regulations and understanding of the

public as mandated by Executive Order 12866. The regulations have been

reorganized and rewritten in plain English.

DATES: Comments must be received on or before June 2, 1997.

ADDRESSES: Mail comments to Joann S. Morris, Director, Office of Indian

Education Programs, Bureau of Indian Affairs, Department of the

Interior, 1849 C St. NW, Mail Stop 3512-MIB, Washington, D.C. 20240;

or, hand deliver them to Room 3512 at the above address. Comments will

be available for inspection at this address from 9:00 a.m. to 4:00

p.m., Monday through Friday beginning approximately April 15, 1997.

FOR FURTHER INFORMATION CONTACT: Garry R. Martin, Office of Indian

Education Programs, Bureau of Indian Affairs at telephone (202) 208-

4871.

SUPPLEMENTARY INFORMATION: The authority to issue rules and regulations

is vested in the Secretary of the Interior by 5 U.S.C. 301 and sections

463 and 465 of the Revised Statutes, 25 U.S.C. 2 and 9.

Publication of the proposed rule by the Department of the Interior

(Department) provides the public an opportunity to participate in the

rulemaking process. Interested persons may submit written comments

regarding the proposed rule to the location identified in the

``addresses'' section of this document.

Executive Order 12988

The Department has certified to the Office of Management and Budget

(OMB) that the proposed rule meets the applicable standards provided in

sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 12866

This proposed rule is not a significant regulatory action under

Executive Order 12866.

Regulatory Flexibility Act

This proposed rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

Executive Order 12630

The Department has determined that this proposed rule does not have

``significant'' takings implications. The proposed rule does not

pertain to ``taking'' of private property interests, nor does it impact

private property.

Executive Order 12612

The Department has determined that this proposed rule does not have

significant Federalism effects because it pertains solely to Federal-

tribal relations and will not interfere with the roles, rights and

responsibilities of States.

NEPA Statement

The Department has determined that this proposed rule does not

constitute a major Federal action significantly affecting the quality

of the human environment and that no detailed statement is required

under the National Environmental Policy Act of 1969.

Unfunded Mandates Act of 1995

This proposed rule imposes no unfunded mandates on any governmental

or private entity and is in compliance with the provisions of the

Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

As required by the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d), the Department of the Interior has submitted a copy of these

sections to the Office of Management and Budget (OMB) for its review.

All information is to be collected annually from each applicant.

The annual reporting and recordkeeping burden for this collection of

information is estimated to average 3 hours for each response for 24

respondents, including the time for reviewing instructions, searching

existing data sources, gathering and maintaining the data needed, and

completing and reviewing the collection of information. The total

annual reporting and recordkeeping burden for this collection is

estimated to be 72 hours.

Organizations and individuals desiring to submit comments on the

information collection requirement should direct them to the Office of

Information and Regulatory Affairs, OMB, Room 10202, New Executive

Office Building, Washington, D.C. 20503; Attention: Desk Officer for

the U.S. Department of the Interior.

[[Page 15447]]

The Department considers comments by the public on this proposed

collection of information in:

Evaluating whether the proposed collection of information is

necessary for the proper performance of the functions of the

Department, including whether the information will have practical

utility;

Evaluating the accuracy of the Department's estimate of the burden

of the proposed collection of information, including the validity of

the methodology and assumptions used;

Enhancing the quality, usefulness, and clarity of the information

to be collected; and

Minimizing the burden of the collection of information on those who

are to respond, including through the use of appropriate automated,

electronic, mechanical, or other collection techniques or other forms

of information technology.

OMB is required to make a decision concerning the collection of

information contained in these proposed regulations between 30 and 60

days after publication of this document in the Federal Register.

Therefore, a comment to the OMB is best assured of having its full

effect if OMB receives it within 30 days of publication. This does not

affect the deadline for the public to comment to the Bureau of Indian

Affairs on the proposed regulations.

Drafting Information

The primary author of this document is Garry R. Martin, Office of

Indian Education Programs, Bureau of Indian Affairs, Department of the

Interior.

List of Subjects in 25 CFR Part 41

Indians--tribally controlled colleges; Indians--educational grants.

For the reasons given in the preamble, part 41 in Chapter I of

Title 25 of the Code of Federal Regulations is proposed to be revised

as set forth below:

PART 41--GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND

NAVAJO COMMUNITY COLLEGE

General Provisions

Sec.

41.1 What does this part cover?

41.2 What terms are used in this part?

41.3 Where do grant funds come from?

41.4 How is the TCCC's annual budget requested?

41.5 What fairness provisions apply to this part?

41.6 How do the requirements of part 276 apply to this part?

Establishing Eligibility

41.10 Who can receive a grant under this part?

41.11 How must grant funds be used?

41.12 How does the Director determine who is eligible for a grant?

41.13 If a TCCC is eligible, when can it receive funding?

41.14 How can a TCCC appeal a finding of ineligibility?

41.15 Is a TCCC's eligibility ever reviewed?

Applying for a Title I Grant

41.20 How can a Title I TCCC apply for a grant?

41.21 How will the TCCC hear if it has received a grant?

41.22 What happens if the Director disapproves an application?

41.23 What additional documentation is required after a grant is

approved?

41.24 Are there criminal penalties for making false statements on

an application?

Counting Students and Measuring Progress

41.30 What procedures are used to count students?

41.31 Must TCCCs have standards for measuring progress?

Applying for a Title II Grant

41.40 What is Navajo Community College's grant entitlement?

41.41 How does NCC apply for its grant under Title II?

41.42 What other provisions apply to NCC's grant?

Grant Payments

41.50 What general limitation applies to grant payments?

41.51 How will BIA determine the per capita payment for Title I

TCCCs?

41.52 What are the per capita payment procedures?

41.53 How must the TCCC handle interest or investment income?

41.54 How is other funding that a TCCC may receive affected by

funding received under this part?

41.55 What about grant overpayments/underpayments?

Technical and Planning Assistance

41.60 Are there any funds for technical assistance?

41.61 Are planning grants available?

41.62 How can a tribe or tribal entity apply for a planning grant?

41.63 How will a tribe or tribal entity know if it has received a

planning grant?

41.64 What is required in a study made with a planning grant?

41.65 What will happen to unused planning grant funds?

41.66 What assistance will BIA provide TCCCs in determining their

needs and costs?

Endowment Funds

41.70 When is a TCCC entitled to receive endowment funds?

41.71 How can a TCCC obtain endowment funds?

41.72 What requirements must an endowment trust fund meet?

41.73 How does a TCCC apply to participate in the endowment

program?

41.74 What action will the Director take on applications?

41.75 What happens if a TCCC is overpaid under the endowment

program?

41.76 What assets may a TCCC use to comply with the matching

requirement?

41.77 How is the value of donated real or personal property

established?

41.78 What happens if real or personal property that the TCCC uses

to comply with the matching requirement is sold or disposed of?

41.79 How will BIA match the value of property or capital

contributions?

41.80 What procedures will BIA follow when there are additional

funds for the endowment program?

Appeals

41.90 What appeal rights do TCCCs have under this part?

Required Reports

41.95 What reports are required?

41.96 Are there requirements for information collection?

Authority: 25 U.S.C. 1801-1852; 25 U.S.C. 640a-640c-3

General Provisions

Sec. 41.1 What does this part cover?

The Congress of the United States has required the Department of

Interior to provide funding for the establishment, operation, and

improvement of Tribally Controlled Community Colleges (TCCCs) to ensure

the growth of educational opportunities for Indian people. This part

contains procedures for providing funding and technical assistance as

authorized by the Tribally Controlled Community College Assistance Act

of 1978 (Act), as amended, and the Navajo Community College Act of

1971, as amended.

Sec. 41.2 What terms are used in this part?

Ability to benefit means that a person without a high school

diploma or its equivalent and whose age is beyond the States compulsory

attendance law may be admitted conditionally as a special student in an

educational program. All higher education institutions must establish,

publish, and apply reasonable standards for the student to benefit

which will include testing that measures the student's aptitude to

successfully complete the course in which he/she is enrolled.

Academic facilities means structures used for classroom

instruction, program administration and maintenance at an institution

of higher education. This includes buildings used for academic,

vocational, and cultural instruction; dormitories; service buildings

used for storage or utilities essential to the operation of these

facilities; and the campus grounds.

[[Page 15448]]

Academic term means a semester, quarter, trimester, or other period

that the TCCC refers to as a division of its academic year.

Academic year means a period established by a tribal college as the

annual period of operation of its education programs.

Act means Title I and Title II of the Tribally Controlled Community

College Assistance Act of 1978, Public Law 95-471; 92 Stat. 1325, 25

U.S.C. 1801 et seq., as amended.

Assistant Secretary means the Assistant Secretary--Indian Affairs

or his/her designee.

BIA means the Bureau of Indian Affairs, U.S. Department of the

Interior.

Director means the Director, Office of Indian Education Programs

(OIEP), Bureau of Indian Affairs or his/her designee.

Endowment fund means an interest bearing account established by a

TCCC that:

(1) Is exempt from taxation;

(2) Is maintained for the purpose of generating income for the

support of the TCCC; and

(3) May include real and personal property (buildings, land, and

money).

Indian means a person who is a member of an Indian tribe and is

eligible to receive services from the Secretary of the Interior because

of his/her status as an Indian.

Indian student count (ISC) means a number equal to the total number

of Indian students enrolled in each TCCC, determined on the basis of

the quotient of the sum of the credit hours of all the Indian students

enrolled, divided by twelve (full-time equivalency). The total (ISC) is

then divided by two (semesters) or three (quarters) to determine the

annual (ISC) which is used as the basis for fund distribution.

Indian tribe means any Indian tribe, band, nation, or other

organized group or community, including any Alaskan native village or

regional or village corporation as defined in, or established pursuant

to, the Alaskan Native Claims Settlement Act, which is recognized as

eligible for the special programs and services provided by the United

States to Indians because of their status as Indians.

Institution of higher education means an institution of higher

education as defined by section 1201(a) of the Higher Education Act of

1965, except clause (2) of that section will not be applicable.

Per capita payment means the payment derived by dividing the amount

appropriated by Congress by the sum of all ISC's and then multiplying

the quotient by the ISC for each TCCC.

Personal property means property of any kind except real property.

It may be tangible--having physical existence, or intangible--having no

physical existence such as patents, inventions, and copyrights.

Real property means land, land improvements, structures, and

appendages thereto, excluding removable personal property, machinery

and equipment.

Regular student means a person who has a high school diploma or GED

and is enrolled in an educational program.

Satisfactory progress means that the student is making sufficient

advancement in his/her field of study in accordance with the standards

of the college.

Secretary means the Secretary of the Interior, or his/her

authorized representative.

Third week means the period beginning with the registration date as

published by the college for each academic session and ending 21

calendar days later.

Title I means Title I of the Tribally Controlled Community College

Assistance Act of 1978, which governs grants to tribally controlled

community colleges other than NCC.

Title II means Title II of the Tribally Controlled Community

College Assistance Act of 1978, which governs grants to NCC.

Tribally controlled community college (TCCC) means an institution

of higher education that is formally controlled, sanctioned, or

chartered by the governing body of an Indian tribe or tribes, except

that no more than one institution will be recognized with respect to

any single tribe.

Unused funds means the amount of funds provided to a TCCC under

this part that has not been obligated or expended by the TCCC by the

end of the fiscal year for which funds were received.

Sec. 41.3 Where do grant funds come from?

Grant funds are subject to the availability of appropriations and

may be drawn from:

(a) General administrative appropriations to the Secretary; or

(b) Not more than 5 percent of the funds appropriated to carry out

Secs. 41.50-41.55.

Sec. 41.4 How is the TCCC's annual budget requested?

The annual budget request for TCCCs must be identified separately

in the BIA Budget justifications. Funds appropriated for grants under

this part must not be commingled with other appropriations historically

expended by the BIA.

Sec. 41.5 What fairness provisions apply to this part?

(a) Services or assistance provided to Indians by TCCCs aided under

this part must be provided in a fair and uniform manner.

(b) No TCCC may deny admission to any Indian student because he/she

is or is not a member of a specific Indian tribe.

Sec. 41.6 How do the requirements of part 276 apply to this part?

Except as otherwise provided in this part, a TCCC must comply with

part 276 of this Title, subject to express waiver of specific

inappropriate provisions of part 276 that may be granted by the

Assistant Secretary after request and justification by the TCCC.

Establishing Eligibility

Sec. 41.10 Who can receive a grant under this part?

A TCCC may receive grants if it:

(a) Was established or otherwise sanctioned or chartered by

resolution, ordinance, or other official action of the governing body

of an Indian tribe or tribes;

(b) Is governed by a board of directors or a board of trustees a

majority of whom are Indians;

(c) Adheres to a philosophy, plan of operation, and stated goals

that are designed to meet Indian needs;

(d) Has been in operation for more than one year and has a majority

of students who are Indians;

(e) Admits as regular students persons who have a certificate of

graduation from a school providing secondary education; or a recognized

equivalent of such a certificate, i.e., General Education Development

(GED); or who are beyond the compulsory school attendance age for the

State in which the institution is located and who have the ability to

benefit from the training offered by the institution;

(f) Provides an educational program resulting in certificates,

associate, baccalaureate, and graduate degrees;

(g) Is a nonprofit and nonsectarian institution;

(h) Is accredited by a nationally recognized accreditation agency

or association or, if not accredited:

(1) The Secretary has determined that there is satisfactory

assurance that the TCCC will meet the standards of an accreditation

agency or association within a reasonable time; or

(2) The TCCC's credits are accepted, on transfer, by not less than

three accredited institutions for credit on the same basis as if

transferred from an accredited institution.

[[Page 15449]]

Sec. 41.11 How must grant funds be used?

Grants made under this part must be used for the general operating

costs of the TCCC to defray, at the determination of the TCCC,

expenditures for academic, educational, and administrative purposes,

and for the operation and maintenance of the college. Funds provided

under this part must not be used in connection with religious worship

or sectarian instruction.

Sec. 41.12 How does the Director determine who is eligible for a

grant?

A TCCC may receive grants under this part only after the Director

makes a positive determination of eligibility as provided in this

section.

(a) The governing body of a tribe or tribes that sponsor a TCCC

wishing to receive a grant must submit a resolution requesting to the

Director.

(b) Within 30 days of receiving the resolution referred to in

paragraph (a) of this section, the Director will designate a study

team. Within 60 days the study team must complete an eligibility study

to determine whether there is justification for maintaining a college

for the tribe(s). The Director will submit a summary of the study and

the decision to:

(1) The tribal governing body or bodies requesting the study; and

(2) The board of directors, regents, or trustees of the college.

(c) The eligibility study will give consideration to the following

factors:

(1) The existence of a college;

(2) Financial feasibility determination based upon an ISC that will

support a TCCC;

(3) Low levels of tribal matriculation in and graduation from other

post-secondary educational institutions;

(4) Tribal, linguistic, or cultural differences;

(5) Relative isolation from other post-secondary institutions due

to factors such as climate, roads, topography, etc.;

(6) Availability of alternate education sources in the service

area;

(7) Proposed curriculum appropriate for Indian post-secondary

education;

(8) Demonstrated adherence to a plan of operation, philosophy, or

goals designed to meet the needs of Indians;

(9) Instructors' qualifications (their degrees and evidence of

expertise in their fields of teaching);

(10) Administrative and support staffs' ability to sustain the

teaching faculty and operation and maintenance of the facility;

(11) Ability to account for the funds made available under the Act

and use them efficiently; and

(12) Adherence to the requirements of Sec. 41.10.

Sec. 41.13 If a TCCC is eligible, when can it receive funding?

If the Director finds a TCCC eligible and the TCCC complies with

section 41.7 of the Act, the TCCC will be eligible for funding

beginning with the next fiscal year.

Sec. 41.14 How can a TCCC appeal a finding of ineligibility?

If the Director finds a TCCC ineligible, he/she must notify the

tribe within 60 days. The tribe may file a notice of appeal with the

Assistant Secretary under Sec. 41.90. A negative determination will not

prevent a tribe from requesting another eligibility study, but the

application for a new study will not be accepted sooner than one year

from the date of the original determination.

Sec. 41.15 Is a TCCC's eligibility ever reviewed?

Yes. The Director annually reviews the eligibility status of each

TCCC. If he/she determines that a TCCC eligible under Sec. 41.12 no

longer meets the criteria under which the original determination of

eligibility was granted, he/she must promptly notify the TCCC in

writing. That determination is grounds for rejection of a TCCC's

application for a grant. Any TCCC receiving this notification may

appeal the Director's determination under Sec. 41.90.

Applying for a Title I Grant

Sec. 41.20 How can a Title I TCCC apply for a grant?

A TCCC that has received a positive eligibility study determination

under Sec. 41.12 is entitled to apply for grants under this part. A

TCCC must complete an application and file it with the Director before

July 1 of the year preceding the academic year for which a grant is

requested. The application must:

(a) Be submitted on the approved form;

(b) Include a college catalog;

(c) Provide a proposed budget showing total expected operating

expenses of all programs to which the information applies;

(d) Include a description of accounting procedures; and

(e) Include a statement that the TCCC will not deny admission to

any Indian solely on the basis of not being a member of the tribe that

has established and operates the TCCC.

Sec. 41.21 How will the TCCC hear if it has received a grant?

Within 60 days of receiving an application, the Director will

review all supporting documents, make a decision, and notify the

applicant in writing of the decision.

Sec. 41.22 What happens if the Director disapproves an application?

(a) If the Director disapproves an application, he/she must send

the applicant written notification that includes the specific reasons

for disapproval. The applicant will then have 30 days to amend or

supplement the application and submit it for reconsideration.

(b) A TCCC may appeal the disapproval of its original grant

proposal or its amended application by following the procedures in

Sec. 41.90.

Sec. 41.23 What additional documentation is required after a grant is

approved?

A grant award under an approved application must be supported by a

grant agreement, signed by a BIA Grants Officer, that includes the

application and provisions required by Secs. 41.5 and 41.6 and section

111 of the Act.

Sec. 41.24 Are there criminal penalties for making false statements on

an application?

Yes. It's a crime under section 1001 of Title 18, U.S. Code, for a

person to submit, or cause to be submitted, any false information to

the BIA in connection with any application, report, or other document

on which Federal financial assistance or any other payment of Federal

funds is based. Punishment for violations under 18 U.S.C. Sec. 1001 is

a fine of not more than $10,000 or imprisonment for not more than 5

years, or both.

Counting Students and Measuring Progress

Sec. 41.30 What procedures are used to count students?

The following Indian Student Count (ISC) procedure must be used by

all Title I TCCCs:

(a) The number is calculated on the basis of Indian students who

are enrolled at the conclusion of the third week, or the equivalent

thereof, of each academic term;

(b) Credits earned by non-Indian students cannot be counted towards

the computation of the ISC for funding under the Act;

(c) Credits earned in classes offered during a summer term are

counted toward the computation of the ISC in the succeeding fall term;

(d) Credit hours converted from CEU's are counted toward the

computation of the ISC;

(e) The formula for conversion of CEU's to credit hours will be: 15

contact hours for one semester credit hour, 10 contact hours for one

quarter credit

[[Page 15450]]

hour. The non-credit activity must meet the standards established by

the TCCC to claim the CEU credits toward computation of the ISC.

(f) Credit hours can be counted for students who are making

satisfactory progress under Sec. 41.31 in accordance with the standards

and practices of the TCCC.

(g) Students accepted for enrollment under the ``ability to

benefit'' clause as special students will be credited and counted the

same as students who have a certificate of graduation (or a recognized

equivalent of such a certificate, i.e., GED) from an accredited post-

secondary school if the student has:

(1) Passed an admission test that measures the student's aptitude

to complete his or her educational program successfully;

(2) Successfully completed a remedial or developmental program

prescribed by the institution that does not exceed one academic year.

Note: Credits earned before successful completion of the prescribed

program cannot be included in the TCCC's ISC; or

(3) Received a GED before the earlier of:

(i) The student's certification or graduation; or

(ii) The end of the first year of the course of study.

(h) Credits earned specific to obtaining the GED cannot be included

in the institution's Indian student count.

Sec. 41.31 Must TCCCs have standards for measuring progress?

Yes. TCCCs must establish, publish, and apply reasonable standards

for satisfactory progress by students pursuing degree or certificate

programs.

Applying for a Title II Grant

Sec. 41.40 What is Navajo Community College's grant entitlement?

(a) Navajo Community College (NCC) is entitled to an annual grant

based upon the amount of the Congressional appropriation for

administration, academic instruction, development, student services,

and operations and maintenance.

(b) A separate annual budget request for NCC must be identified in

the BIA budget justification. Funds appropriated for grants under this

part must not be commingled with other appropriations that BIA has

historically spent for programs and projects normally provided on the

Navajo Reservation for Navajo beneficiaries.

Sec. 41.41 How does NCC apply for its grant under Title II?

(a) NCC must submit an application statement by July 1 each year.

The statement must include:

(1) A description of NCC's curriculum (which may be in the form of

a college catalog or similar publication);

(2) A proposed budget showing the total expected operating expenses

of educational programs; and

(3) The expected revenue from all sources for that academic year.

(b) The chief executive officer of the NCC must certify the

authenticity of the application and submit documentation that a copy of

the application was submitted to the Navajo Tribe.

Sec. 41.42 What other provisions apply to NCC's grant?

(a) The grant award must be evidenced by a grant agreement signed

by the Director, incorporating the grant application and the provisions

required by Secs. 41.5 and 41.6.

(b) Overpayments of grants under this part may be recovered as

provided by Sec. 41.55.

(c) Payments to NCC under this part will not disqualify NCC from

applying for or receiving grants or contracts under any other Federal

programs for which it may qualify.

Grant Payments

Sec. 41.50 What general limitation applies to grant payments?

A grant under this part for any academic year is subject to the

availability of appropriations and the provision that no grant can

exceed the total cost of the education program provided by the TCCC.

Sec. 41.51 How will BIA determine the per capita payment for Title I

TCCCs?

The per capita payment to each Title I TCCC will be determined by

establishing an amount per Indian Student Count (ISC). The per capita

payment is the Title I appropriation for the year divided by the total

previous year's ISC.

Sec. 41.52 What are the per capita payment procedures?

(a) The Director will authorize payments in the appropriated amount

for each TCCC with an approved application. Payments will be computed

as follows:

(1) By October 15 or no later than 14 days after appropriations

become available, whichever comes first, BIA will allot 95 percent of

the funds to each TCCC based on the prior year's certified ISC.

(2) BIA will pay the balance of any grant to which a grantee is

entitled paid no later than January 1 of the fiscal year, subject to

availability of funds.

(b) By July 1, the TCCC must inform the Director in writing of the

amount of any funds not expected to be obligated by the end of the

fiscal year. The Director will reallocate the unused funds to other

TCCCs based on their ISC for that year.

Sec. 41.53 How must the TCCC handle interest or investment income?

(a) Any interest or investment income that accrues on these funds

after they are paid to the TCCC will become the property of the TCCC

and will not affect other funding.

(b) The TCCC must spend all interest or investment income by the

close of the fiscal year following the fiscal year in which the income

accrues.

(c) Funds may only be invested in obligations of the United States

or in obligations or securities that are guaranteed or insured by the

United States.

Sec. 41.54 How is other funding that a TCCC may receive affected by

funding received under this part?

(a) Payments to Title I TCCCs under this part will not disqualify

the TCCC from applying for or receiving grants or contracts under any

other Federal programs for which it may qualify.

(b) A TCCC receiving funds for programs under the Snyder Act of

November 2, 1921, will not:

(1) Have its funding altered;

(2) Be denied a contract for Snyder Act funds under the Indian

Self-Determination and Education Assistance Act; or

(3) Be denied contract support to administer those funds.

(c) Eligibility for payment under this part will not, by itself,

make a TCCC ineligible to receive Federal financial assistance under

the Higher Education Act of 1965 or any other programs that benefit

institutions of higher education, community colleges, or post-secondary

educational institutions.

(d) Notwithstanding any provision of law, funds provided under this

part to the TCCCs will be treated as nonfederal, private funds of the

TCCC for purposes of any provision of Federal law that requires

nonfederal funds for a project.

Sec. 41.55 What about grant overpayments/underpayments?

If the Director finds that a Title I TCCC receiving funds under

this part has been overpayed or underpaid, he/she must promptly notify

the TCCC of the grant overpayment or underpayment. An adjustment will

be made in the current fiscal year, if funds are available. If funds

are not available,

[[Page 15451]]

the grant adjustment will be made in the next fiscal year from the

amount appropriated for the Title I TCCCs.

Technical and Planning Assistance

Sec. 41.60 Are there any funds for technical assistance?

(a) To apply for technical assistance and if funds are available,

the TCCC should submit a written request to the Director for program

development. Technical assistance funds will be provided to all

eligible TCCCs on an equal payment basis.

(b) The Director may distribute technical assistance funds with the

initial payment in accordance with Sec. 41.52, or may award them to an

organization that the TCCC designates. If the TCCC wishes to have its

funds awarded to an organization, the TCCC must notify the Director in

its annual application on or before July 1 of every year.

(c) If the Director denies a request for technical assistance, the

Director will notify the TCCC in writing, including the specific reason

for the denial.

Sec. 41.61 Are planning grants available?

Yes, subject to specific appropriations. If money is appropriated,

BIA may approve a planning grant for a tribe or a tribal entity to

conduct planning activities for establishing a TCCC.

Sec. 41.62 How can a tribe or tribal entity apply for a planning

grant?

Each applicant for a planning grant must submit an application

using standard form (SF) 424 in accordance with OMB Circular No. A-110.

The Director will consider each application in order of receipt for

each fiscal year.

Sec. 41.63 How will a tribe or tribal entity know if it has received a

planning grant?

The Director will notify the grant applicant whether the

application has been approved or disapproved within 60 days of its

receipt. No more than five grants, not to exceed $15,000 each, will be

awarded each fiscal year.

Sec. 41.64 What is required in a study made with a planning grant?

(a) The planning study must contain:

(1) Information pertaining to the potential number of tribal

members interested in enrolling;

(2) An assessment of post-secondary educational opportunities on or

near the Indian reservation;

(3) Information concerning facilities usage;

(4) A review of tribal and BIA funds spent on in-service training;

(5) The estimated tribal financial contribution toward the

operation of a TCCC;

(6) Relative isolation factors;

(7) Tribal member enrollments at other post-secondary institutions

in the service area; and

(8) Curriculum needs.

(b) The results of the planning study must be submitted within 60

days after completion to:

(1) The Director;

(2) The tribal governing body or bodies requesting the planning

grants; and

(3) The board of directors, regents, or trustees of the TCCC.

Sec. 41.65 What will happen to unused planning grant funds?

Any unallocated funds appropriated in a fiscal year for planning

grants will be distributed to the Title I colleges according to the

procedures in Sec. 41.52.

Sec. 41.66 What assistance will BIA provide TCCCs in determining their

needs and costs?

The Secretary, in consultation with the National Center for

Education Statistics, will establish a data collection system to obtain

accurate information on the needs and costs of operation and

maintenance of TCCCs.

Endowment Funds

Sec. 41.70 When is a TCCC entitled to receive endowment funds?

A TCCC is entitled to receive endowment funds if the TCCC:

(a) Has received operational funds during the fiscal year in which

application for an endowment fund is made; and

(b) Has not been awarded a grant under section 331 of the Higher

Education Amendments of 1986, Endowment Challenge Grants, (20 U.S.C.

1065a) during the same fiscal year.

Sec. 41.71 How can a TCCC obtain endowment funds?

To obtain endowment funds, a TCCC must establish a trust fund as

required by Sec. 41.72 and apply to the Director under Sec. 41.73.

Sec. 41.72 What requirements must an endowment trust fund meet?

A TCCC desiring to receive a grant under this section must enter an

agreement with the Secretary to establish and maintain a trust fund

that:

(a) Meets the requirements of section 302(b)(1) of the Tribally

Controlled Community College Assistance Act, as amended;

(b) Provides for the deposit in the fund of:

(1) Any Federal capital contributions;

(2) A TCCC capital contribution in an amount (or of a value) equal

to half the amount of each Federal capital contribution; and

(3) Any earnings of the deposited funds.

(c) Provides that deposited funds will accumulate interest at a

rate not less than that of similar funds deposited at the institution

for the same period of time;

(d) Provides that if a TCCC withdraws any of its capital

contribution, an amount of Federal contribution equal to twice the

amount (or value) of each withdrawal will be withdrawn and returned to

the Secretary for redistribution;

(e) Provides that no private person may benefit from the net

earnings of the trust fund;

(f) Provides a description of recordkeeping procedures for the

expenditure of accumulated interest; and

(g) Provides that interest deposited in the trust fund may be

periodically withdrawn and used to defray any expenses associated with

the operation of the TCCC.

Sec. 41.73 How does a TCCC apply to participate in the endowment

program?

BIA will notify TCCCs when funding is available for the endowment

program. Upon receiving this notice, the TCCC must submit a signed

letter to the Director certifying its intent to participate in the

program and identifying the amount (or value of) funds/property

available for matching purposes.

Sec. 41.74 What action will the Director take on applications?

(a) The Director will review each request made under Sec. 41.73. If

the Director approves the request, BIA will match on a two-for-one

basis the amount identified by the TCCC, up to a maximum of $750,000 in

matching funds per TCCC.

(b) If the request is disapproved, the Director must notify the

TCCC in writing, identifying the specific reasons for the disapproval

and advising the TCCC of its right to appeal.

Sec. 41.75 What happens if a TCCC is overpaid under the endowment

program?

The Director must notify a TCCC if an overpayment has been made.

The TCCC must then return the excess funds.

Sec. 41.76 What assets may a TCCC use to comply with the matching

requirement?

To comply with the matching requirement, a TCCC, may use:

(a) Funds available from any private or tribal source; and

[[Page 15452]]

(b) Any real or personal property received as a donation or a gift

on or after October 30, 1990, to the extent of its fair market value as

determined by the Secretary.

Sec. 41.77 How is the value of donated real or personal property

established?

(a) The fair market value of donated real or personal property must

be established by a qualified appraiser. The Secretary or his/her

authorized representative must review and approve the appraisal.

(b) The fair market value of property at the time it is presented

to the Federal appraiser will be the amount that will be used for

matching purposes regardless of future changes in value.

Sec. 41.78 What happens if real or personal property that the TCCC

uses to comply with the matching requirement is sold or disposed of?

If any real or personal property that the TCCC uses to comply with

the matching requirement is sold or otherwise disposed of, the proceeds

must be deposited in the established endowment trust account. The

deposited proceeds and will not again be considered for Federal capital

contribution purposes.

Sec. 41.79 How will BIA match the value of property or capital

contributions?

(a) From the amount appropriated, the Secretary will allocate to

each eligible TCCC:

(1) An amount for a Federal capital contribution equal to twice the

value of the property or the amount that the TCCC demonstrates is

committed as a capital contribution; except,

(2) The maximum amount allocated to any TCCC for any fiscal year

cannot exceed $750,000.

(b) If in any fiscal year the appropriated amount is insufficient

to allocate to each TCCC an amount equal to twice the value, then the

allocated amount to each TCCC will be reduced pro rata.

Sec. 41.80 What procedures will BIA follow when there are additional

funds for the endowment program?

(a) The Director, after satifying the unmet endowment, will notify

all eligible TCCCs of the amount of the remaining funds.

(b) Within 60 days of the date of notification of extra funds, an

eligible TCCC may submit an application.

(c) After Congress appropriates funds, the Director must notify

eligible TCCCs of the amount available under this part.

Appeals

Sec. 41.90 What appeal rights do TCCCs have under this part?

(a) A TCCC has the right to appeal any adverse decision made by the

Director to the Assistant Secretary by filing a written notice of

appeal with the Assistant Secretary within 30 days of receipt of the

adverse decision.

(b) Within 30 days of receiving a notice of appeal, the Assistant

Secretary, or designated representative, must conduct a hearing at

which the TCCC may present evidence and offer arguments in support of

its appeal.

(c) Within 30 days after the hearing, the Assistant Secretary must

issue a written ruling on the appeal including the reasons for that

ruling that confirms, modifies, or reverses the Director's decision.

The ruling of the Assistant Secretary is final.

Required Reports

Sec. 41.95 What reports are required?

(a) Each Title I TCCC must conduct an ISC report at the conclusion

of the third week, or equivalent, of each academic term and then submit

the report to the Director by the designated due date.

(b) Each college receiving grants under this part must submit an

annual report to the Director by January 1 in accordance with the

reporting procedures of OMB approved Form No. 1076-0105, Annual Report.

(c) The Director must conduct an evaluation of each new TCCC during

the second year of funding. Periodic evaluations of established TCCCs

will be conducted. The evaluation will take the form of:

(1) A review of the TCCC's continued adherence to the elements of

the eligibility study,

(2) A review of Indian student enrollment,

(3) A review of its CPA audit report to determine compliance with

recommendations; and,

(4) A review of the accreditation status.

Sec. 41.96 Are there requirements for information collection?

The Standard Form 424 and attachments prescribed by that circular

are approved by OMB under 44 U.S.C. 3501 et seq. These sections

describe types of information that would satisfy the application

requirements of Circular A-110 for this grant program. The information

collection requirement contained in this part has been approved by the

Office of Management and Budget under the Paperwork Reduction Act of

1995, 44 U.S.C. 3507(d), and assigned clearance number 1076-0018.

Dated: March 20, 1997.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 97-8062 Filed 3-31-97; 8:45 am]

BILLING CODE 4310-02-P