25 CFR 39 - Indian School Equalization Program

Bureau of Indian Affairs, Interior

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§ 38.14

Pt. 39

Voluntary services.

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

(3) Department of the Interior Regulations Governing Responsibilities and
Conduct.
(e) Travel and other expenses. The decision to reimburse travel and other incidental expenses, as well as the
amount of reimbursement, shall be
made by the school supervisor, ASE,
AEPA, and the respective school board.
Payment is made in the same manner
as for regular employees. Payment of
travel and per diem expenses to a volunteer on a particular assignment
must be supported by a specific travel
authorization and cannot exceed the
cost of employing a temporary employee of comparable qualification at
the school for which a travel authorization is considered.
(f) Annual report. School supervisors
shall submit reports on volunteers to
the ASE or AEPA by October 31 of each
year for the preceding year.
§ 38.15 Southwestern
technic Institute.

Indian

(a) The Southwestern Indian Polytechnic Institute has an independent
personnel system established under
Public Law 105–337, the Administrative
Systems Act of 1998, 112 Stat. 3171. The
details of this system are in the Indian
Affairs Manual (IAM) at Part 20. This
manual system may be found in Bureau
of Indian Affairs Regional and Agency
Offices, Education Line Offices, and the
Central Office in Washington, DC.
(b) The personnel system is in the excepted service and addresses the areas
of classification, staffing, pay, performance, discipline, and separation.
Other areas of personnel such as leave,
retirement, life insurance, health benefits, thrift savings, etc., remain under
the jurisdiction of the Office of Personnel Management.
[65 FR 58183, Sept. 27, 2000]

PART 39—THE INDIAN SCHOOL
EQUALIZATION PROGRAM
Subpart A—General
Sec.
39.1 What is the purpose of this part?
39.2 What definitions apply to terms in this
part?
39.3 Information collection.

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Pt. 39

25 CFR Ch. I (4–1–10 Edition)
39.137 May schools operate a language development program without a specific
appropriation from Congress?

Subpart B—Indian School Equalization
Formula
39.100 What is the Indian School Equalization Formula?
39.101 Does ISEF assess the actual cost of
school operations?
BASE AND SUPPLEMENTAL FUNDING
39.102 What is academic base funding?
39.103 What are the factors used to determine base funding?
39.104 How must a school’s base funding provide for students with disabilities?
39.105 Are additional funds available for
special education?
39.106 Who is eligible for special education
funding?
39.107 Are schools allotted supplemental
funds for special student and/or school
costs?
GIFTED AND TALENTED PROGRAMS
39.110 Can ISEF funds be distributed for the
use of gifted and talented students?
39.111 What does the term gifted and talented mean?
39.112 What is the limit on the number of
students who are gifted and talented?
39.113 What are the special accountability
requirements for the gifted and talented
program?
39.114 What characteristics may qualify a
student as gifted and talented for purposes of supplemental funding?
39.115 How are eligible gifted and talented
students identified and nominated?
39.116 How does a school determine who receives gifted and talented services?
39.117 How does a school provide gifted and
talented services for a student?
39.118 How does a student receive gifted and
talented services in subsequent years?
39.119 When must a student leave a gifted
and talented program?
39.120 How are gifted and talented services
provided?
39.121 What is the WSU for gifted and talented students?

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LANGUAGE DEVELOPMENT PROGRAMS
39.130 Can ISEF funds be used for Language
Development Programs?
39.131 What is a Language Development
Program?
39.132 Can a school integrate Language Development Programs into its regular instructional program?
39.133 Who decides how Language Development funds can be used?
39.134 How does a school identify a Limited
English Proficient student?
39.135 What services must be provided to an
LEP student?
39.136 What is the WSU for Language Development programs?

SMALL SCHOOL ADJUSTMENT
39.140 How does a school qualify for a Small
School Adjustment?
39.141 What is the amount of the Small
School Adjustment?
39.143 What is a small high school?
39.144 What is the small high school adjustment?
39.145 Can a school receive both a small
school adjustment and a small high
school adjustment?
39.146 Is there an adjustment for small residential programs?
GEOGRAPHIC ISOLATION ADJUSTMENT
39.160 Does ISEF provide supplemental
funding for extraordinary costs related
to a school’s geographic isolation?

Subpart C—Administrative Procedures,
Student Counts, and Verifications
39.200 What is the purpose of the Indian
School Equalization Formula?
39.201 Does ISEF reflect the actual cost of
school operations?
39.202 What are the definitions of terms
used in this subpart?
39.203 When does OIEP calculate a school’s
allotment?
39.204 How does OIEP calculate ADM?
39.205 How does OIEP calculate a school’s
total WSUs for the school year?
39.206 How does OIEP calculate the value of
one WSU?
39.207 How does OIEP determine a school’s
funding for the school year?
39.208 How are ISEP funds distributed?
39.209 When may a school count a student
for membership purposes?
39.210 When must a school drop a student
from its membership?
39.211 What other categories of students can
a school count for membership purposes?
39.212 Can a student be counted as enrolled
in more than one school?
39.213 Will the Bureau fund children being
home schooled?
39.214 What is the minimum number of instructional hours required in order to be
considered a full-time educational program?
39.215 Can a school receive funding for any
part-time students?
RESIDENTIAL PROGRAMS
39.216 How does ISEF fund residential programs?
39.217 How are students counted for the purpose of funding residential services?
39.218 Are there different formulas for different levels of residential services?

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Bureau of Indian Affairs, Interior

Pt. 39

39.219 What happens if a residential program does not maintain residency levels
required by this subpart?
39.220 What reports must residential programs submit to comply with this rule?
39.221 What is a full school month?
PHASE-IN PERIOD
39.230 How will the provisions of this subpart be phased in?

Subpart D—Accountability
39.401 What is the purpose of this subpart?
39.402 What definitions apply to terms used
in this subpart?
39.403 What certification is required?
39.404 What
is
the
certification
and
verification process?
39.405 How will verifications be conducted?
39.406 What documentation must the school
maintain for additional services it provides?
39.407 How long must a school maintain
records?
39.408 What are the responsibilities of administrative officials?
39.409 How does the OIEP Director ensure
accountability?
39.410 What qualifications must an audit
firm meet to be considered for auditing
ISEP administration?
39.411 How will the auditor report its findings?
39.412 What sanctions apply for failure to
comply with this subpart?
39.413 Can a school appeal the verification
of the count?

Subpart E—Contingency Fund
39.500 What emergency and contingency
funds are available?
39.501 What is an emergency or unforeseen
contingency?
39.502 How does a school apply for contingency funds?
39.503 How can a school use contingency
funds?
39.504 May schools carry over contingency
funds to a subsequent fiscal year?
39.505 What are the reporting requirements
for the use of the contingency fund?

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Subpart F—School Board Training Expenses
39.600 Are Bureau-operated school board expenses funded by ISEP limited?
39.601 Is school board training for Bureauoperated schools considered a school
board expense subject to the limitation?
39.603 Is school board training required for
all Bureau-funded schools?
39.604 Is there a separate weight for school
board
training
at
Bureau-operated
schools?

Subpart G—Student Transportation
39.700 What is the purpose of this subpart?
39.701 What definitions apply to terms used
in this subpart?
ELIGIBILITY FOR FUNDS
39.702 Can a school receive funds to transport residential students using commercial transportation?
39.703 What ground transportation costs are
covered for students traveling by commercial transportation?
39.704 Are schools eligible to receive chaperone expenses to transport residential
students?
39.705 Are schools eligible for transportation funds to transport special education students?
39.706 Are peripheral dormitories eligible
for day transportation funds?
39.707 Which student transportation expenses are currently not eligible for Student Transportation Funding?
39.708 Are miles generated by non-ISEP eligible students eligible for transportation
funding?
CALCULATING TRANSPORTATION MILES
39.710 How does a school calculate annual
bus transportation miles for day students?
39.711 How does a school calculate annual
bus transportation miles for residential
students?
REPORTING REQUIREMENTS
39.720 Why are there different reporting requirements for transportation data?
39.721 What
transportation
information
must off-reservation boarding schools report?
39.722 What
transportation
information
must day schools, on-reservation boarding schools and peripheral dormitory
schools report?
MISCELLANEOUS PROVISIONS
39.730 Which standards must student transportation vehicles meet?
39.731 Can transportation time be used as
instruction time for day school students?
39.732 How does OIEP allocate transportation funds to schools?

Subpart H—Determining the Amount Necessary To Sustain an Academic or Residential Program
39.801 What is the formula to determine the
amount necessary to sustain a school’s
academic or residential program?
39.802 What is the student unit value in the
formula?
39.803 What is a weighted student unit in
the formula?

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§ 39.1

25 CFR Ch. I (4–1–10 Edition)

39.804 How is the SUIV calculated?
39.805 What was the student unit for instruction value (SUIV) for the school
year 1999–2000?
39.806 How is the SURV calculated?
39.807 How will the Student Unit Value be
adjusted annually?
39.808 What definitions apply to this subpart?
39.809 Information collection.

Subpart I—Interim Maintenance and Minor
Repair Fund
39.900 Establishment and funding of an Interim Maintenance and Minor Repair
Fund.
39.901 Conditions for distribution.
39.902 Allocation.
39.903 Use of funds.
39.904 Limitations.

Subpart J—Administrative Cost Formula
39.1000 Purpose and scope.
39.1001 Definitions.
39.1002 Allotment of education administrative funds.
39.1003 Allotment exception for FY 1991.

Subpart K—Pre-kindergarten Programs
39.1100 Interim fiscal year 1980 and fiscal
year 1981 funding for pre-kindergarten
programs previously funded by the Bureau.
39.1101 Addition of pre-kindergarten as a
weight factor to the Indian School
Equalization Formula in fiscal year 1982.

Subpart L—Contract School Operation and
Maintenance Fund
39.1200 Definitions.
39.1201 Establishment of an interim fiscal
year 1980 operation and maintenance
fund for contract schools.
39.1202 Distribution of funds.
39.1203 Future consideration of contract
school operation and maintenance funding.
AUTHORITY: 25 U.S.C. 13, 2008; Public Law
107–110, 115 Stat. 1425.
SOURCE: 44 FR 61864, Oct. 26, 1979, unless
otherwise noted. Redesignated at 47 FR 13327,
Mar. 30, 1982.

Subpart A—General

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SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.1 What is the purpose of this part?
This part provides for the uniform direct funding of Bureau-operated and

tribally operated day schools, boarding
schools, and dormitories. This part applies to all schools, dormitories, and
administrative units that are funded
through the Indian School Equalization Program of the Bureau of Indian
Affairs.
§ 39.2 What definitions apply to terms
in this part?
Act means the No Child Left Behind
Act, Public Law 107–110, enacted January 8, 2002. The No Child Left Behind
Act reauthorizes and amends the Elementary and Secondary Education Act
(ESEA) and the amended Education
Amendments of 1978.
Agency means an organizational unit
of the Bureau which provides direct
services to the governing body or bodies and members of one or more specified Indian Tribes. The term includes
Bureau Area Offices only with respect
to off-reservation boarding schools administered directly by such Offices.
Agency school board means a body,
the members of which are appointed by
the school boards of the schools located
within such agency, and the number of
such members shall be determined by
the Director in consultation with the
affected tribes, except that, in agencies
serving a single school, the school
board of such school shall fulfill these
duties.
Assistant Secretary means the Assistant Secretary of Indian Affairs, Department of the Interior, or his or her
designee.
At no cost means provided without
charge, but does not preclude incidental fees normally charged to nondisabled students or their parents as a
part of the regular education program.
Average Daily Membership (ADM)
means the aggregated ISEP-eligible
membership of a school for a school
year, divided by the number of school
days in the school’s submitted calendar.
Basic program means the instructional program provided to all students
at any age level exclusive of any supplemental programs that are not provided to all students in day or boarding
schools.
Basic transportation miles means the
daily average of all bus miles logged

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Bureau of Indian Affairs, Interior

§ 39.2

for round trip home-to-school transportation of day students.
Bureau means the Bureau of Indian
Affairs in the Department of the Interior.
Bureau-funded school means
(1) Bureau school;
(2) A contract or grant school; or
(3) A school for which assistance is
provided under the Tribally Controlled
Schools Act of 1988.
Bureau school means a Bureau-operated elementary or secondary day or
boarding school or a Bureau-operated
dormitory for students attending a
school other than a Bureau school.
Count Week means the last full week
in September during which schools
count their student enrollment for
ISEP purposes.
Director means the Director of the Office of Indian Education Programs in
the Bureau of Indian Affairs or a designee.
Education Line Officer means the Bureau official in charge of Bureau education programs and functions in an
Agency who reports to the Director.
Eligible Indian student means a student who:
(1) Is a member of, or is at least onefourth degree Indian blood descendant
of a member of, a tribe that is eligible
for the special programs and services
provided by the United States through
the Bureau of Indian Affairs to Indians
because of their status as Indians;
(2) Resides on or near a reservation
or meets the criteria for attendance at
a Bureau off-reservation home-living
school; and
(3) Is enrolled in a Bureau-funded
school.
Home schooled means a student who is
not enrolled in a school and is receiving educational services at home at the
parent’s or guardian’s initiative.
Homebound means a student who is
educated outside the classroom.
Individual supplemental services means
non-base academic services provided to
eligible students. Individual supplemental services that are funded by additional WSUs are gifted and talented
or language development services.
ISEP means the Indian School
Equalization Program.
Limited English Proficient (LEP) means
a child from a language background

other than English who needs language
assistance in his/her own language or
in English in the schools. This child
has sufficient difficulty speaking, writing, or understanding English to deny
him/her the opportunity to learn successfully in English-only classrooms
and meets one or more of the following
conditions:
(1) The child was born outside of the
United States or the child’s Native language is not English;
(2) The child comes from an environment where a language other than
English is dominant; or
(3) The child is an American Indian
or Alaska Native and comes from an
environment where a language other
than English has had a significant impact on the child’s level of English language proficiency.
Local School Board means a body chosen in accordance with the laws of the
tribe to be served or, in the absence of
such laws, elected by the parents of the
Indian children attending the school.
For a school serving a substantial
number of students from different
tribes:
(1) The members of the local school
board shall be appointed by the tribal
governing bodies affected; and
(2) The Secretary shall determine
number of members in consultation
with the affected tribes.
OIEP means the Office of Indian Education Programs in the Bureau of Indian Affairs.
Physical education means the development of physical and motor fitness,
fundamental motor skills and patterns,
and skills in aquatics, dance, and individual and group games and sports (including
intramural
and
lifetime
sports). The term includes special
physical education, adapted physical
education, movement education, and
motor development.
Resident means a student who is residing at a boarding school or dormitory during the weeks when student
membership counts are conducted and
is either:
(1) A member of the instructional
program in the same boarding school in
which the student is counted as a resident; or

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§ 39.2

25 CFR Ch. I (4–1–10 Edition)

(2) Enrolled in and a current member
of a public school or another Bureaufunded school.
Residential program means a program
that provides room and board in a
boarding school or dormitory to residents who are either:
(1) Enrolled in and are current members of a public school or Bureau-funded school; or
(2) Members of the instructional program in the same boarding school in
which they are counted as residents
and:
(i) Are officially enrolled in the residential program of a Bureau-operated
or -funded school; and
(ii) Are actually receiving supplemental services provided to all students who are provided room and board
in a boarding school or a dormitory.
Secretary means the Secretary of the
Interior or a designated representative.
School means a school funded by the
Bureau of Indian Affairs. The term
‘‘school’’ does not include public, charter, or private schools.
School bus means a passenger vehicle
that is:
(1) Used to transport day students to
and/or from home and the school; and
(2) 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.
School day means a day as defined by
the submitted school calendar, as long
as annual instructional hours are as
they are reflected in § 39.213, excluding
passing time, lunch, recess, and breaks.
Special education means:
(1) Specially designed instruction, at
no cost to the parents, to meet the
unique needs of a child with a disability, including:
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the requirements of
paragraph (1) of this definition:
(i) Speech-language pathology services, or any other related service, if the
service is considered special education
rather than a related service under
State standards;

(1) Travel training; and
(2) Vocational education.
Specially designed instruction means
adapting, as appropriate, to the needs
of an eligible child under this part, the
content, methodology, or delivery or
instruction:
(1) To address the unique needs of the
child that result from the child’s disability; and
(2) To ensure access of the child to
the general curriculum, so that he or
she can meet the educational standards
within the jurisdiction of the public
agency that apply to all children
Three-year average means:
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the
count period membership of the 3 years
before the current year of operation.
Travel training means providing instruction, as appropriate, to children
with significant cognitive disabilities,
and any other children with disabilities
who require this instruction, to enable
them to:
(1) Develop an awareness of the environment in which they live; and
(2) Learn the skills necessary to
move efficiently and safely from place
to place within that environment (e.g.,
in school, in the home, at work, and in
the community).
Tribally operated school means an elementary school, secondary school, or
dormitory that receives financial assistance for its operation under a contract, grant, or agreement with the Bureau under section 102, 103(a), or 208 of
25 U.S.C. 450 et seq., or under the Tribally Controlled Schools Act of 1988.
Vocational education means organized
educational programs that are directly
related to the preparation of individuals for paid or unpaid employment, or
for additional preparation for a career
requiring other than a baccalaureate or
advanced degree.
Unimproved
roads
means
unengineered earth roads that do not
have adequate gravel or other aggregate surface materials applied and do
not have drainage ditches or shoulders.
Weighted Student Unit means:
(1) The measure of student membership adjusted by the weights or ratios

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Bureau of Indian Affairs, Interior

§ 39.105

used as factors in the Indian School
Equalization Formula; and
(2) The factor used to adjust the
weighted student count at any school
as the result of other adjustments
made under this part.
§ 39.3

Information collection.

Notwithstanding any other provision
of law, no person is required to respond
to, nor shall any person be subject to a
penalty for failure to comply with a
collection of information, subject to
the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) (PRA), unless that collection of
information displays a currently valid
Office of Management and Budget
(OMB) Control Number. This part contains in §§ 39.410 and 39.502 collections
of information subject to the PRA.
These collections have been approved
by OMB under control number 1076–
0163.

To determine base funding, schools
must use the factors shown in the following table. The school must apply
the appropriate factor to each student
for funding purposes.
Grade level

Base
academic
funding factor

Kindergarten ..................
Grades 1–3 ....................
Grades 4–6 ....................
Grades 7–8 ....................
Grades 9–12 ..................

Base
residential
funding factor

1.15
1.38
1.15
1.38
1.5

§ 39.104 How must a school’s base
funding provide for students with
disabilities?

The Indian School Equalization Formula (ISEF) was established to allocate Indian School Equalization Program (ISEP) funds. OIEP applies ISEF
to determine funding allocation for Bureau-funded schools as described in
§§ 39.204 through 39.206.
§ 39.101 Does ISEF assess the actual
cost of school operations?

§ 39.105 Are additional funds available
for special education?

No. ISEF does not attempt to assess
the actual cost of school operations either at the local level or in the aggregate at the national level. ISEF provides a method of distribution of funds
appropriated by Congress for all
schools.

(a) Schools 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). To obtain part B funds, the
school must submit an application to
OIEP. IDEA funds are available only if
the school demonstrates that funds reserved under § 39.104(a) are inadequate
to pay for services needed by all eligible ISEP students with disabilities.
(b) The Bureau will facilitate the delivery of IDEA part B funding by:

SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.100 What is the Indian School
Equalization Formula?

BASE AND SUPPLEMENTAL FUNDING
§ 39.102 What is academic base funding?
Academic base funding is the ADM
times the weighted student unit.

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NA
1.75
1.6
1.6
1.6

(a) Each school must provide for students with disabilities by:
(1) Reserving 15 percent of academic
base funding to support special education programs; and
(2) Providing resources through residential base funding to meet the needs
of students with disabilities under the
National Criteria for Home-Living Situations.
(b) A school may spend all or part of
the 15 percent academic base funding
reserved under paragraph (a)(1) of this
section on school-wide programs to
benefit all students (including those
without disabilities) only if the school
can document that it has met all needs
of students with disabilities with such
funds, and after having done so, there
are unspent funds remaining from such
funds.

Subpart B—Indian School
Equalization Formula

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§ 39.103 What are the factors used to
determine base funding?

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§ 39.106

25 CFR Ch. I (4–1–10 Edition)

(1) Providing technical assistance to
schools in completing the application
for the funds; and
(2) Providing training to Bureau staff
to improve the delivery of part B funds.
§ 39.106 Who is eligible for special education funding?
To receive ISEP special education
funding, a student must be under 22
years old and must not have received a
high school diploma or its equivalent
on the first day of eligible attendance.
The following minimum age requirements also apply:
(a) To be counted as a kindergarten
student, a child must be at least 5
years old by December 31; and
(b) To be counted as a first grade student; a child must be at least 6 years
old by December 31.
§ 39.107 Are schools allotted supplemental funds for special student
and/or school costs?
Yes, schools are allotted supplemental funds for special student and/or
school costs. ISEF provides additional
funds to schools through add-on
weights (called special cost factors).
ISEF adds special cost factors as shown
in the following table.
Cost Factor

For more information see

Gifted and talented students
Students with language development needs.
Small school size ...................
Geographic isolation of the
school.

§§ 39.110 through 39.121
§§ 39.130 through 39.137
§§ 39.140 through 39.156
§ 39.160

GIFTED AND TALENTED PROGRAMS
§ 39.110 Can ISEF funds be distributed
for the use of gifted and talented
students?
Yes, ISEF funds can be distributed
for the provision of services for gifted
and talented students.

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§ 39.111 What does the term gifted and
talented mean?
The term gifted and talented means
students, children, or youth who:
(a) Give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership
capacity, or in specific academic fields;
and

(b) Need services or activities not ordinarily provided by the school in order
to fully develop those capabilities.
§ 39.112 What is the limit on the number of students who are gifted and
talented?
There is no limit on the number of
students that a school can classify as
gifted and talented.
§ 39.113 What are the special accountability requirements for the gifted
and talented program?
If a school identifies more than 13
percent of its student population as
gifted and talented the Bureau will immediately audit the school’s gifted and
talented program to ensure that all
identified students:
(a) Meet the gifted and talented requirement in the regulations; and
(b) Are receiving gifted and talented
services.
§ 39.114 What
characteristics
may
qualify a student as gifted and talented for purposes of supplemental
funding?
To be funded as gifted and talented
under this part, a student must be
identified as gifted and talented in at
least one of the following areas.
(a) Intellectual Ability means scoring
in the top 5 percent on a statistically
valid and reliable measurement tool of
intellectual ability.
(b)
Creativity/Divergent
Thinking
means scoring in the top 5 percent of
performance on a statistically valid
and reliable measurement tool of creativity/divergent thinking.
(c)
Academic
Aptitude/Achievement
means scoring in the top 15 percent of
academic performance in a total subject area score on a statistically valid
and reliable measurement tool of academic achievement/aptitude, or a
standardized assessment, such as an
NRT or CRT.
(d) Leadership means the student is
recognized as possessing the ability to
lead, guide, or influence the actions of
others as measured by objective standards that a reasonable person of the
community
would
believe
demonstrates that the student possess
leadership skills. These standards include evidence from surveys, supportive
documentation
portfolios,

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Bureau of Indian Affairs, Interior

§ 39.117

elected or appointed positions in
school, community, clubs and organization, awards documenting leadership
capabilities. No school can identify
more than 15 percent of its student
population as gifted and talented
through the leadership category.
(e) Visual and Performing Arts means
outstanding ability to excel in any
imaginative art form; including, but
not limited to, drawing, printing,
sculpture, jewelry making, music,
dance, speech, debate, or drama as documented from surveys, supportive documentation portfolios, awards from
judged or juried competitions. No
school can identify more than 15 percent of its student population as gifted
and talented through the visual and
performing arts category.

wwoods2 on DSKDVH8Z91PROD with CFR

§ 39.115 How are eligible gifted and
talented students identified and
nominated?
(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:
(1) A teacher or other school staff;
(2) Another student;
(3) A community member;
(4) A parent or legal guardian; or
(5) The student himself or herself.
(b) Students can be nominated based
on information regarding the student’s
abilities from any of the following
sources:
(1) Collections of work;
(2) Audio/visual tapes;
(3) School grades;
(4) Judgment of work by qualified individuals knowledgeable about the student’s performances (e.g., artists, musicians, poets, historians, etc.);
(5) Interviews or observations; or
(6) Information from other sources.
(c) The school must have written parental consent to collect documentation of gifts and talents under paragraph (b) of this section.
§ 39.116 How does a school determine
who receives gifted and talented
services?
(a) To determine who receives gifted
and talented funding, the school must
use qualified professionals to perform a
multi-disciplinary assessment. The as-

sessment may include the examination
of work samples or performance appropriate to the area under consideration.
The school must have the parent or
guardian’s written permission to conduct individual assessments or evaluations. Assessments under this section
must meet the following standards:
(1) The assessment must use assessment instruments specified in § 39.114
for each of the five criteria for which
the student is nominated;
(2) If the assessment uses a multi-criteria evaluation, that evaluation must
be an unbiased evaluation based on student needs and abilities;
(3) Indicators for visual and performing arts and leadership may be determined based on national, regional,
or local criteria; and
(4) The assessment may use student
portfolios.
(b) A multi-disciplinary team will review the assessment results to determine eligibility for gifted and talented
services. The purpose of the team is to
determine eligibility and placement to
receive gifted and talented services.
(1) Team members may include nominator, classroom teacher, qualified professional who conducted the assessment, local experts as needed, and
other appropriate personnel such as the
principal and/or a counselor.
(2) A minimum of three team members is required to determine eligibility.
(3) The team will design a specific
education plan to provide gifted and
talented services related in the areas
identified.
§ 39.117 How does a school provide
gifted and talented services for a
student?
Gifted and talented services are provided through or under the supervision
of highly qualified professional teachers. To provide gifted and talented
services for a student, a school must
take the steps in this section.
(a) The multi-disciplinary team
formed under § 39.116(b) will sign a
statement of agreement for placement
of services based on documentation reviewed.
(b) The student’s parent or guardian
must give written permission for the
student to participate.

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§ 39.118

25 CFR Ch. I (4–1–10 Edition)

(c) The school must develop a specific
education plan that contains:
(1) The date of placement;
(2) The date services will begin;
(3) The criterion from § 39.114 for
which the student is receiving services
and the student’s performance level;
(4) Measurable goals and objectives;
and
(5) A list of staff responsible for each
service that the school is providing.
§ 39.118 How does a student receive
gifted and talented services in subsequent years?
For each student receiving gifted and
talented services, the school must conduct a yearly evaluation of progress,
file timely progress reports, and update
the specific education plan.
(a) If a school identifies a student as
gifted and talented based on § 39.114 (a),
(b), or (c), then the student does not
need to reapply for the gifted and talented program. However, the student
must be reevaluated at least every 3
years through the 10th grade to verify
eligibility for funding.
(b) If a school identifies a student as
gifted and talented based on § 39.114 (d)
or (e), the student must be reevaluated
annually for the gifted and talented
program.
§ 39.119 When must a student leave a
gifted and talented program?
A student must leave the gifted and
talented program when either:
(a) The student has received all of
the available services that can meet
the student’s needs;
(b) The student no longer meets the
criteria that have qualified him or her
for the program; or
(c) The parent or guardian removes
the student from the program.

wwoods2 on DSKDVH8Z91PROD with CFR

§ 39.120 How are gifted and talented
services provided?
In providing services under this section, the school must:
(a) Provide a variety of programming
services to meet the needs of the students;
(b) Provide the type and duration of
services identified in the Individual
Education Plan established for each
student; and

(c) Maintain individual student files
to provide documentation of process
and services; and
(d) Maintain confidentiality of student records under the Family Educational Rights and Privacy Act
(FERPA).
§ 39.121 What is the WSU for gifted
and talented students?
The WSU for a gifted and talented
student is the base academic weight
(see § 39.103) subtracted from 2.0. The
following table shows the gifted and
talented weights obtained using this
procedure.
Gifted and
talented
WSU

Grade level
Kindergarten ....................................................
Grades 1 to 3 ..................................................
Grades 4 to 6 ..................................................
Grades 7 to 8 ..................................................
Grades 9 to 12 ................................................

LANGUAGE DEVELOPMENT PROGRAMS
§ 39.130 Can ISEF funds be used for
Language Development Programs?
Yes, schools can use ISEF funds to
implement Language Development programs that demonstrate the positive
effects of Native language programs on
students’ academic success and English
proficiency. Funds can be distributed
to a total aggregate instructional
weight of 0.13 for each eligible student.
§ 39.131 What is a Language Development Program?
A Language Development program is
one that serves students who either:
(a) Are not proficient in spoken or
written English;
(b) Are not proficient in any language;
(c) Are learning their Native language for the purpose of maintenance
or language restoration and enhancement;
(d) Are being instructed in their Native language; or
(e) Are learning non-language subjects in their Native language.
§ 39.132 Can a school integrate Language Development programs into
its regular instructional program?
A school may offer Language Development programs to students as part of

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Bureau of Indian Affairs, Interior

§ 39.144

its regular academic program. Language Development does not have to be
offered as a stand-alone program.
§ 39.133 Who decides how Language
Development funds can be used?
Tribal governing bodies or local
school boards decide how their funds
for Language Development programs
will be used in the instructional program to meet the needs of their students.
§ 39.134 How does a school identify a
Limited English Proficient student?
A student is identified as limited
English proficient (LEP) by using a nationally recognized scientifically research-based test.
§ 39.135 What services must be provided to an LEP student?
A school must provide services that
assist each LEP student to:
(a) Become proficient in English and,
to the extent possible, proficient in
their Native language; and
(b) Meet the same challenging academic content and student academic
achievement standards that all students are expected to meet under 20
U.S.C. 6311(b)(1).
§ 39.136 What is the WSU for Language
Development programs?
Language Development programs are
funded at 0.13 WSUs per student.

wwoods2 on DSKDVH8Z91PROD with CFR

§ 39.137 May schools operate a language development program without a specific appropriation from
Congress?
Yes, a school may operate a language
development program without a specific appropriation from Congress, but
any funds used for such a program
must come from existing ISEP funds.
When Congress specifically appropriates funds for Indian or Native languages, the factor to support the language development program will be no
more than 0.25 WSU.

SMALL SCHOOL ADJUSTMENT
§ 39.140 How does a school qualify for
a Small School Adjustment?
A school will receive a small school
adjustment if either:
(a) Its average daily membership
(ADM) is less than 100 students; or
(b) It serves lower grades and has a
diploma-awarding high school component with an average instructional
daily membership of less than 100 students.
§ 39.141 What is the amount of the
Small School Adjustment?
(a) A school with a 3-year ADM of 50
or fewer students will receive an adjustment equivalent to an additional
12.5 base WSU; or
(b) A school with a 3-year ADM of 51
to 99 students will use the following
formula to determine the number of
WSU for its adjustment. With X being
the ADM, the formula is as follows:
WSU adjustment = ((100¥X)/200)*X

§ 39.143

What is a small high school?

For purposes of this part, a small
high school:
(a) Is accredited under 25 U.S.C.
2001(b);
(b) Is staffed with highly qualified
teachers;
(c) Operates any combination of
grades 9 through 12;
(d) Offers high school diplomas; and
(e) Has an ADM of fewer than 100 students.
§ 39.144 What is the small high school
adjustment?
(a) The small high school adjustment
is a WSU adjustment given to a small
high school that meets both of the following criteria:
(1) It has a 3-year average daily membership (ADM) of less than 100 students; and
(2) It operates as part of a school that
during the 2003–04 school year also included lower grades.
(b) The following table shows the
WSU adjustment given to small high
schools. In the table, ‘‘X’’ stands for
the ADM.

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§ 39.145

25 CFR Ch. I (4–1–10 Edition)

ADM of high school
component

50
51
50
51

School receives
a component
small school adjustment under
§ 39.141

Amount of small high school adjustment

or fewer students ........................
to 99 students .............................
or fewer students ........................
to 99 students .............................

6.25 base WSU .......................................................................................
determined using the following formula: WSU = ((100–X)/200)*X/2 ......
12.5 base WSU .......................................................................................
determined using the following formula: WSU = ((100–X)/200)*X .........

Yes.
Yes.
No.
No.

§ 39.145 Can a school receive both a small school adjustment and a small high
school adjustment?
A school that meets the criteria in § 39.140 can receive both a small school adjustment and a small high school adjustment. The following table shows the total
amount of adjustments for eligible schools by average daily membership (ADM)
category.
ADM—high
school
component

ADM—entire school
1–50 ......................................................................................
1–50 ......................................................................................
51–99 ....................................................................................
51–99 ....................................................................................
99 ..........................................................................................
99 ..........................................................................................

NA
1–50
1–50
51–99
1–50
51–99

Small school
adjustment
12.5
12.5
2 12.5–0.5
1 12.5–0.5

0.5
0.5

Small high
school
adjustment
NA
6.25
6.25
2 6.25–0.25
12.5
2 12.5–0.5

Total
adjustment
12.5
18.75
18.75–6.75
18.75–0.7
12.5
12.5–0.5

1 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in
§ 39.141.
2 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in
§ 39.144.

§ 39.146 Is there an adjustment for
small residential programs?
In order to compensate for the additional costs of operating a small residential program, OIEP will add to the
total WSUs of each qualifying school as
shown in the following table:
Type of residential program
Residential student count of
50 or fewer ISEP-eligible
students.
Residential student count of
between 51 and 99 ISEPeligible students.

SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.200 What is the purpose of the Indian School Equalization Formula?

Number of WSUs added

OIEP uses the Indian School Equalization Formula (ISEF) to distribute Indian School Equalization Program
(ISEP) appropriations equitably to Bureau-funded schools.

12.5.

Determined by the formula
((100-X)/200))X, where X
equals the residential student count.

§ 39.201 Does ISEF reflect the actual
cost of school operations?

GEOGRAPHIC ISOLATION ADJUSTMENT
§ 39.160 Does ISEF provide supplemental funding for extraordinary
costs related to a school’s geographic isolation?

wwoods2 on DSKDVH8Z91PROD with CFR

Subpart C—Administrative Procedures, Student Counts, and
Verifications

Yes. Havasupai Elementary School,
for as long as it remains in its present
location, will be awarded an additional
cost factor of 12.5 WSU.

ISEF does not attempt to assess the
actual cost of school operations either
at the local school level or in the aggregate nationally. ISEF is a relative
distribution of available funds at the
local school level by comparison with
all other Bureau-funded schools.
§ 39.202 What are the definitions of
terms used in this subpart?
Homebound means a student who is
educated outside the classroom.

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Bureau of Indian Affairs, Interior

§ 39.209

Home schooled means a student who is
not enrolled in a school and is receiving educational services at home at the
parent’s or guardian’s initiative.
School day means a day as defined by
the submitted school calendar, as long
as annual instructional hours are as
they are reflected in § 39.213, excluding
passing time, lunch, recess, and breaks.
Three-year average means:
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the
count period membership of the 3 years
before the current year of operation.
§ 39.203 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.
§ 39.204 How
ADM?

does

OIEP

calculate

OIEP calculates ADM by:
(a) Adding the total enrollment figures from periodic reports received
from each Bureau-funded school; and
(b) Dividing the total enrollment for
each school by the number of days in
the school’s reporting period.
§ 39.205 How does OIEP calculate a
school’s total WSUs for the school
year?

wwoods2 on DSKDVH8Z91PROD with CFR

(a) OIEP will add the weights obtained from the calculations in paragraphs (a)(1), (a)(2), and (a)(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 WSUs
generated by the students; and
(3) Calculate any supplemental WSUs
generated by the schools.
(b) The total WSU for the school year
is the sum of paragraphs (a)(1), (a)(2),
and (a)(3) of this section.
§ 39.206 How does OIEP calculate the
value of one WSU?
(a) To calculate the appropriated dollar value of one WSU, OIEP divides the
systemwide average number of WSUs

for the previous 3 years into the current year’s appropriation.
(b) To calculate the average WSU for
a 3-year period:
(1) Step 1. Add together each year’s
total WSU (calculated under paragraph
(b) of this section); and
(2) Step 2. Divide the sum obtained in
step 1 by 3.
§ 39.207 How does OIEP determine a
school’s funding for the school
year?
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 § 639.107.
(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.
§ 39.208 How are ISEP funds distributed?
(a) On July 1, schools will receive 80
percent of their funds as determined in
§ 39.207.
(b) On December 1, the balance will
be distributed to all schools after
verification of the school count and
any adjustments made through the appeals process for the third year.
§ 39.209 When may a school count a
student for membership purposes?
If a student is enrolled, is in attendance during any of the first 10 days of
school, and receives at least 5 days’ instruction, the student is deemed to be

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§ 39.210

25 CFR Ch. I (4–1–10 Edition)

enrolled all 10 days and shall be counted for ADM purposes. The first 10 days
of school, for purposes of this section,
are determined by the calendar that
the school submits to OIEP.
(a) For ISEP purposes, a school can
add a student to the membership when
he or she has been enrolled and has received a full day of instruction from
the school.
(b) Except as provided in § 39.210, to
be counted for ADM, a student dropped
under § 39.209 must:
(1) Be re-enrolled; and
(2) Receive a full day of instruction
from the school.

Circumstances under which student
can be included in the school’s membership

(d) Taking distance
learning courses.

The student is both:
(1) Receiving high school credit for
grades; and
(2) In physical attendance at the school
at least 3 documented contact hours
per day.
The student is both:
(1) Receiving high school credit for
grades; and
(2) Taking the courses at the school
site under a teacher’s supervision.

(e) Taking internet
courses.

§ 39.210 When must a school drop a
student from its membership?

§ 39.212 Can a student be counted as
enrolled in more than one school?
Yes, if a student attends more than
one school during an academic year,
each school may count the student as
enrolled once the student meets the
criteria in 39.209.

If a student is absent for 10 consecutive school days, the school must drop
that student from the membership for
ISEP purposes of that school on the
11th day.

§ 39.213 Will the Bureau fund children
being home schooled?
No, the Bureau will not fund any
child that is being home schooled.

§ 39.211 What other categories of students can a school count for membership purposes?
A school can count other categories
of students for membership purposes as
shown in the following table.
Circumstances under which student
can be included in the school’s membership

(a) Homebound ......

(1) The student is temporarily confined
to the home for some or all of the
school day for medical, family emergency, or other reasons required by
law or regulation;
(2) The student is being provided by
the school with at least 5 documented contact hours each week of
academic services by certified educational personnel; and
(3) Appropriate documentations is on
file at the school.
The school is either:
(1) Paying for the student to receive
educational services from the facility;
or
(2) Providing educational services by
certified school staff for at least 5
documented contact hours each
week.
The student is both:
(1) Concurrently enrolled in, and receiving credits for both the school’s
courses and college courses; and
(2) In physical attendance at the school
at least 3 documented contact hours
per day.

(c) Taking college
courses during
the school day.

§ 39.214 What is the minimum number
of instructional hours required in
order to be considered a full-time
educational program?
A full time program provides the following number of instructional/student
hours to the corresponding grade level:
Grade

Type of
student

(b) Located in an institutional setting
outside of the
school.

wwoods2 on DSKDVH8Z91PROD with CFR

Type of
student

Hours

K ........................................................................
1–3 .....................................................................
4–8 .....................................................................
9–12 ...................................................................

§ 39.215 Can a school receive funding
for any part-time students?
(a) A school can receive funding for
the following part-time students:
(1) Kindergarten students enrolled in
a 2-hour program; and
(2) Grade 7–12 students enrolled in at
least half but less than a full instructional day.
(b) The school must count students
classified as part-time at 50 percent of
their basic instructional WSU value.
RESIDENTIAL PROGRAMS
§ 39.216 How does ISEF fund residential programs?
Residential programs are funded on a
WSU basis using a formula that takes
into account the number of nights of

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Bureau of Indian Affairs, Interior

§ 39.401

service per week. Funding for residential programs is based on the average
of the 3 previous years’ residential
WSUs.

does not maintain 25 percent of the
residency shown in its submitted calendar, the school will lose one-tenth of
its current year allocation.

§ 39.217 How are students counted for
the purpose of funding residential
services?
For a student to be considered in residence for purposes of this subpart, the
school must be able to document that
the student was:
(a) In residence at least one night
during the first full week of October;
(b) In residence at least one night
during the week preceding the first full
week in October;
(c) In residence at least one night
during the week following the first full
week in October; and
(d) Present for both the after school
count and the midnight count at least
one night during each week specified in
this section.

§ 39.220 What reports must residential
programs submit to comply with
this subpart?
Residential programs must report
their monthly counts to the Director
on the last school day of the month. To
be counted, a student must have been
in residence at least 10 nights during
each full school month.

§ 39.218 Are there different formulas
for different levels of residential
services?
(a) Residential services are funded as
shown in the following table:
If a residential program operates . . .

Each student is funded at the
level of . . .

(1) 4 nights per week or less
(2) 5, 6 or 7 nights per week

Total WSU × 4/7.
Total WSU × 7/7.

wwoods2 on DSKDVH8Z91PROD with CFR

(b) In order to qualify for residential
services funding under paragraph (a)(2)
of this section, a school must document that at least 10 percent of residents are present on 3 of the 4 weekends during the count period.
(c) 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.
(d) A school may obtain waivers from
the requirements of this section if
there are health or safety justifications.
§ 39.219 What happens if a residential
program does not maintain residency levels required by this subpart?
Each school must maintain its declared nights of service per week as
certified in its submitted school calendar. For each month that a school

§ 39.221 What is a full school month?
A full school month is each 30-day period following the first day that residential services are provided to students based on the school residential
calendar.
PHASE-IN PERIOD
§ 39.230 How will the provisions of this
subpart be phased in?
The calculation of the three-year
rolling average of ADM for each school
and for the entire Bureau-funded
school system will be phased-in as
shown in the following table.
Time period

How OIEP must calculate ADM

(a) First school year
after May 31,
2005.
(b) Second school
year after May
31, 2005.

Use the prior 3 years’ count period to
create membership for funding purposes
(1) The academic program will use the
previous year’s ADM school year
and the 2 prior years’ count periods;
and
(2) The residential program will use the
previous year’s count period and the
2 prior years’ count weeks
Add one year of ADM or count period
and drop one year of prior count
weeks until both systems are operating on a 3-year rolling average
using the previous 3 years’ count
after period or ADM, respectively.

(c) Each succeeding
school year after
May 31, 2005.

Subpart D—Accountability
SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.401 What is the purpose of this
subpart?
The purpose of this subpart is to ensure accountability of administrative
officials by creating procedures that
are systematic and can be verified by a
random independent outside auditing

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§ 39.402

25 CFR Ch. I (4–1–10 Edition)

procedures. These procedures will ensure the equitable distribution of funds
among schools.

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§ 39.402 What definitions apply to
terms used in this subpart?
Administrative officials means any persons responsible for managing and operating a school, including the school
supervisor, the chief school administrator, tribal officials, Education Line
Officers, and the Director, OIEP.
Director means the Director of the Office of Indian Education Programs of
the Bureau of Indian Affairs.
Education Line Officer means the Bureau official in charge of Bureau education programs and functions in an
Agency who reports to the Director.
§ 39.403 What certification is required?
(a) Each school must maintain an individual file on each student receiving
basic educational and supplemental
services. The file must contain written
documentation of the following:
(1) Each student’s eligibility and attendance records;
(2) A complete listing of all supplemental services provided, including all
necessary documentation required by
statute and regulations (e.g., a current
and complete Individual Education
Plan for each student receiving supplemental services); and
(3) Documentation of expenditures
and program delivery for student
transportation to and from school provided by commercial carriers.
(b) The School must maintain the
following files in a central location:
(1) The school’s ADM and supplemental program counts and residential
count;
(2) Transportation related documentation, such as school bus mileage,
bus routes;
(3) A list of students transported to
and from school;
(4) An electronic student count program or database;
(5) Class record books;
(6) Supplemental program class
record books;
(7) For residential programs, residential student attendance documentation;
(8) Evidence of teacher certification;
and

(9) The school’s accreditation certificate.
(c) The Director must maintain a
record of required certifications for
ELOs, specialists, and school superintendents in a central location.
§ 39.404 What is the certification and
verification process?
(a) Each school must:
(1) Certify that the files required by
§ 39.403 are complete and accurate; and
(2) Compile a student roster that includes a complete list of all students
by grade, days of attendance, and supplemental services.
(b) The chief school administrator
and the president of the school board
are responsible for certifying the
school’s ADM and residential count is
true and accurate to the best of their
knowledge or belief and is supported by
appropriate documentation.
(c) OIEP’s education line officer
(ELO) will annually review the following to verify that the information
is true and accurate and is supported
by program documentation:
(1) The eligibility of every student;
(2) The school’s ADM and supplemental program counts and residential
count;
(3) Evidence of accreditation;
(4) Documentation for all provided
basic and supplemental services, including all necessary documentation
required by statute and regulations
(e.g., a current and complete Individual
Education Plan for each student receiving supplemental services); and
(5) Documentation required by subpart G of this part for student transportation to and from school provided
by commercial carriers.
§ 39.405 How will verifications be conducted?
The eligibility of every student shall
be verified. The ELO will take a random sampling of five days with a minimum of one day per grading period to
verify the information in § 39.404(c).
The ELO will verify the count for the
count period and verify residency during the remainder of the year.

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Bureau of Indian Affairs, Interior

§ 39.411

§ 39.406 What documentation must the
school maintain for additional services it provides?
Every school must maintain a file on
each student receiving additional services.
(Additional
services
include
homebound services, institutional services, distance courses, Internet courses
or college services.) The school must
certify, and its records must show,
that:
(a) Each homebound or institutionalized student is receiving 5 contact
hours each week by certified educational personnel;
(b) Each student taking college, distance or internet courses is in physical
attendance at the school for at least 3
certified contact hours per day.
§ 39.407 How long must a school maintain records?
The responsible administrative official for each school must maintain
records relating to ISEP, supplemental
services, and transportation-related expenditures. The official must maintain
these records in appropriate retrievable storage for at least the four years
prior to the current school year, unless
Federal records retention schedules require a longer period.

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§ 39.408 What are the responsibilities
of administrative officials?
Administrative officials have the following responsibilities:
(a) Applying the appropriate standards in this part for classifying and
counting ISEP eligible Indian students
at the school for formula funding purposes;
(b) Accounting for and reporting student transportation expenditures;
(c) Providing training and supervision to ensure that appropriate
standards are adhered to in counting
students and accounting for student
transportation expenditures;
(d) Submitting all reports and data
on a timely basis; and
(e) Taking appropriate disciplinary
action for failure to comply with requirements of this part.
§ 39.409 How does the OIEP Director
ensure accountability?
(a) The Director of OIEP must ensure
accountability in student counts and

student transportation by doing all of
the following:
(1) Conducting annual independent
and random field audits of the processes and reports of at least one school
per OIEP line office to ascertain the
accuracy of Bureau line officers’ reviews;
(2) Hearing and making decisions on
appeals from school officials;
(3) Reviewing reports to ensure that
standards and policies are applied consistently, education line officers treat
schools fairly and equitably, and the
Bureau takes appropriate administrative action for failure to follow this
part; and
(4) Reporting the results of the findings and determinations under this section to the appropriate tribal governing body.
(b) The purpose of the audit required
by paragraph (a)(1) of this section is to
ensure that the procedures outlined in
these regulations are implemented. To
conduct the audit required by paragraph (a)(1) of this section, OIEP will
select an independent audit firm that
will:
(1) Select a statistically valid audit
sample of recent student counts and
student transportation reports; and
(2) Analyze these reports to determine adherence to the requirements of
this part and accuracy in reporting.
§ 39.410 What qualifications must an
audit firm meet to be considered
for auditing ISEP administration?
To be considered for auditing ISEP
administration under this subpart, an
independent audit firm must:
(a) Be a licensed Certified Public Accountant Firm that meets all requirements for conducting audits under the
Federal Single Audit Act;
(b) Not be under investigation or
sanction for violation of professional
audit standards or ethics;
(c) Certify that it has conducted a
conflict of interests check and that no
conflict exists; and
(d) Be selected through a competitive
bidding process.
§ 39.411 How will the auditor report its
findings?
(a) The auditor selected under § 39.410
must:

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§ 39.412

25 CFR Ch. I (4–1–10 Edition)

(1) Provide an initial draft report of
its findings to the governing board or
responsible Federal official for the
school(s) involved; and
(2) Solicit, consider, and incorporate
a response to the findings, where submitted, in the final audit report.
(b) The auditor must submit a final
report to the Assistant Secretary—Indian Affairs and all tribes served by
each school involved. The report must
include all documented exceptions to
the requirements of this part, including those exceptions that:
(1) The auditor regards as negligible;
(2) The auditor regards as significant,
or as evidence of incompetence on the
part of responsible officials, and that
must be resolved in a manner similar
to significant audit exceptions in a fiscal audit; or
(3) Involve fraud and abuse.
(c) The auditor must immediately report exceptions involving fraud and
abuse directly to the Department of
the Interior Inspector General’s office.

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§ 39.412 What sanctions apply for failure to comply with this subpart?
(a) The employer of a responsible administrative official must take appropriate personnel action if the official:
(1) Submits false or fraudulent ISEPrelated counts;
(2) Submits willfully inaccurate
counts of student participation in
weighted program areas; or
(3) Certifies or verifies submissions
described in paragraphs (a)(1) or (a)(2)
of this section.
(b) Unless prohibited by law, the employer must report:
(1) Notice of final Federal personnel
action to the tribal governing body and
tribal school board; and
(2) Notice of final tribal or school
board personnel action to the Director
of OIEP.
§ 39.413 Can a school appeal the
verification of the count?
Yes, a school may appeal to the Director any administrative action disallowing any academic, transportation,
supplemental program or residential
count. In this appeal, the school may
provide evidence to indicate the student’s eligibility, membership or residency or adequacy of a program for all

or a portion of school year. The school
must follow the applicable appeals
process in 25 CFR part 2 or 25 CFR part
900, subpart L.

Subpart E—Contingency Fund
SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.500 What emergency and contingency funds are available?
The Secretary:
(a) Must reserve 1 percent of funds
from the allotment formula to meet
emergencies and unforeseen contingencies affecting educational programs;
(b) Can carry over to the next fiscal
year a maximum of 1 percent the current year funds; and
(c) May distribute all funds in excess
of 1 percent equally to all schools or
distribute excess as a part of ISEP.
§ 39.501 What is an emergency or unforeseen contingency?
An emergency or unforeseen contingency is an event that meets all of the
following criteria:
(a) It could not be planned for;
(b) It is not the result of mismanagement, malfeasance, or willful neglect;
(c) It is not covered by an insurance
policy in force at the time of the event;
(d) The Assistant Secretary determines that Bureau cannot reimburse
the emergency from the facilities
emergency repair fund; and
(e) It could not have been prevented
by prudent action by officials responsible for the educational program.
§ 39.502 How does a school apply for
contingency funds?
To apply for contingency funds, a
school must send a request to the ELO.
The ELO must send the request to the
Director for consideration within 48
hours of receipt. The Director will consider the severity of the event and will
attempt to respond to the request as
soon as possible, but in any event within 30 days.
§ 39.503 How can a school use contingency funds?
Contingency funds can be used only
for education services and programs,

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Bureau of Indian Affairs, Interior

§ 39.702

including repair of educational facilities.

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

§ 39.504 May schools carry over contingency funds to a subsequent fiscal
year?

Yes. There is an ISEP weight not to
exceed 1.2 WSUs to cover school board
training and expenses at Bureau-operated schools.

Bureau-operated schools may carry
over funds to the next fiscal year.
§ 39.505 What are the reporting requirements for the use of the contingency fund?
(a) At the end of each fiscal year, Bureau/OIEP shall send an annual report
to Congress detailing how the Contingency Funds were used during the previous fiscal year.
(b) By October 1 of each year, the Bureau must send a letter to each school
and each tribe operating a school listing the allotments from the Contingency Fund.

Subpart F—School Board Training
Expenses
SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.600 Are Bureau-operated school
board expenses funded by ISEP limited?
Yes. Bureau-operated schools are
limited to $8,000 or one percent (1%) of
ISEP allotted funds (not to exceed
$15,000).
§ 39.601 Is school board training for
Bureau-operated schools considered a school board expense subject
to the limitation?
No, school board training for Bureauoperated schools is not considered a
school board expense subject to the
limitation in § 39.600.

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

Subpart G—Student Transportation
SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.700 What is the purpose of this
subpart?
(a) This subpart covers how transportation mileage and funds for schools
are calculated under the ISEP transportation program. The program funds
transportation of students from home
to school and return.
(b) To use this part effectively, a
school should:
(1) Determine its eligibility for funds
using the provisions of §§ 39.702 through
39.708;
(2) Calculate its transportation miles
using the provisions of §§ 39.710 and
39.711; and
(3) Submit the required reports as required by §§ 39.721 and 39.722.
§ 39.701 What definitions apply
terms used in this subpart?

ISEP means the Indian School
Equalization Program.
Transportation mileage count week
means the last full week in September.
Unimproved
roads
means
unengineered earth roads that do not
have adequate gravel or other aggregate surface materials applied and do
not have drainage ditches or shoulders.
ELIGIBILITY FOR FUNDS
§ 39.702 Can a school receive funds to
transport residential students using
commercial transportation?
A school transporting students by
commercial bus, train, airplane, or
other commercial modes of transportation will be funded at the cost of the
commercial ticket for:
(a) The trip from home to school in
the Fall;
(b) The round-trip return home at
Christmas; and

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§ 39.703

25 CFR Ch. I (4–1–10 Edition)

(c) The return trip home at the end of
the school year.
§ 39.703 What ground transportation
costs are covered for students traveling by commercial transportation?
This section applies only if a school
transports residential students by commercial bus, train or airplane from
home to school. The school may receive funds for the ground miles that
the school has to drive to deliver the
students or their luggage from the bus,
train, or plane terminal to the school.
§ 39.704 Are schools eligible to receive
chaperone expenses to transport
residential students?
Yes. Schools may receive funds for
actual chaperone expenses, excluding
salaries, during the transportation of
students to and from home at the beginning and end of the school year and
at Christmas.
§ 39.705 Are schools eligible for transportation funds to transport special
education students?
Yes. A school that transports a special education student from home to a
treatment center and back to home on
a daily basis as required by the student’s Individual Education Plan may
count those miles for day student funding.
§ 39.706 Are peripheral dormitories eligible for day transportation funds?
Yes. If the peripheral dormitory is required to transport dormitory students
to the public school, the dormitory
may count those miles driven transporting students to the public school
for day transportation funding.

(a) The following transportation expenses are currently not eligible for
transportation funding, however the
data will be collected under the provisions in this subpart:
(1) Fuel and maintenance runs;
(2) Transportation home for medical
or other emergencies;

§ 39.708 Are miles generated by nonISEP 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.
CALCULATING TRANSPORTATION MILES
§ 39.710 How does a school calculate
annual bus transportation miles for
day students?
To calculate the total annual bus
transportation miles for day students,
a school must use the appropriate formula from this section. In the formulas, Tu = Miles driven on Tuesday of
the transportation mileage count
week, W = Miles driven on Wednesday
of the transportation mileage count
week, and Th = Miles driven on Thursday of the transportation mileage
count week.
(a) For ISEP-eligible day students
whose route is entirely over improved
roads, calculate miles using the following formula:

Tu + W + Th
∗ 180
3
(b) For ISEP-eligible day students
whose route is partly over unimproved
roads, calculate miles using the following three steps.
(1) Step 1. Apply the following formula to miles driven over improved
roads only:

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§ 39.707 Which student transportation
expenses are currently not eligible
for Student Transportation Funding?

(3) Transportation from school to
treatment or special services programs;
(4) Transportation to after-school
programs; and
(5) Transportation for day and boarding school students to attend instructional programs less than full-time at
locations other than the school reporting the mileage.
(b) Examples of after-school programs covered by paragraph (a)(4) of
this section include:
(1) Athletics;
(2) Band;
(3) Detention;
(4) Tutoring, study hall and special
classes; and
(5) Extra-curricular activities such as
arts and crafts.

Bureau of Indian Affairs, Interior

§ 39.722

Tu + W + Th
∗ 180
3

§ 39.721 What transportation information must off-reservation boarding
schools report?

(2) Step 2. Apply the following formula to miles driven over unimproved
roads only:

(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 the 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 buses, 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;
and
(6) Driver costs;
(7) All expenses referred to in § 39.707.

§ 39.711 How does a school calculate
annual bus transportation miles for
residential students?
To calculate the total annual transportation miles for residential students, a school must use the procedures
in paragraph (b) of this section.
(a) The school can receive funds for
the following trips:
(1) Transportation to the school at
the start of the school year;
(2) Round trip home at Christmas;
and
(3) Return trip to home at the end of
the school year.
(b) To calculate the actual miles
driven to transport students from
home to school at the start of the
school year, add together the miles
driven for all buses used to transport
students from their homes to the
school. If a school transports students
over unimproved roads, the school
must separate the number of miles
driven for each bus into improved
miles and unimproved miles. The number of miles driven is the sum of:
(1) The number of miles driven on improved roads; and
(2) The number of miles driven on unimproved roads multiplied by 1.2.
(c) The annual miles driven for each
school is the sum of the mileage from
paragraphs (b)(1) and (b)(2) of this section multiplied by 4.
REPORTING REQUIREMENTS

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§ 39.720 Why are there different reporting requirements for transportation data?
In order to construct an actual cost
data base, residential and day schools
must report data required by §§ 39.721
and 39.722.

§ 39.722 What transportation information must day schools, on-reservation boarding schools and peripheral dormitory schools report?
(a) By August 1 of each year, all
schools and peripheral dorms that provide transportation must submit a report that covers the preceding year.
This report must include:
(1) Fixed vehicle costs and other
costs, including: the number and type
of buses, 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) Mileage driven for student medical trips;
(5) Costs of vehicle maintenance and
service cost, including cost of miles

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ER28AP05.089

(3) Step 3. Add together the sums
from steps 1 and 2 to obtain the total
annual transportation miles.

ER28AP05.088

Tu + W + Th
∗ 1.2 ∗ 180
3

§ 39.730

25 CFR Ch. I (4–1–10 Edition)

driven to obtain maintenance and service;
(6) Driver costs; and
(7) All expenses referred to in § 39.707.
(b) In addition, all day schools and
on-reservation boarding schools must
include in their report a Day Student
Transportation Form signed and certified as complete and accurate by the
School Principal and the appropriate
ELO.
MISCELLANEOUS PROVISIONS
§ 39.730 Which standards must student
transportation vehicles meet?
All vehicles used by schools to transport students must meet or exceed all
appropriate Federal motor vehicle safety standards and State or Tribal motor
vehicle safety standards. The Bureau
will not fund transportation mileage
and costs incurred transporting students in vehicles that do not meet
these standards.

wwoods2 on DSKDVH8Z91PROD with CFR

§ 39.731 Can transportation time be
used as instruction time for day
school students?
No. Transportation time cannot be
used as instruction time for day school
students in meeting the minimum required hours for academic funding.
§ 39.732 How does OIEP allocate transportation funds to schools?
OIEP allocates transportation funds
based on the types of transportation
programs that the school provides. To
allocate transportation funds OIEP:
(a) Multiplies the one-way commercial costs for all schools by four to
identify the total commercial costs for
all schools;
(b) Subtracts the commercial cost
total from the appropriated transportation funds and allocates the balance
of the transportation funds to each
school with a per-mile rate;
(c) Divides the balance of funds by
the sum of the annual day miles and
the annual residential miles to identify
a per-mile rate;
(d) For day transportation, multiplies the per-mile rate times the annual day miles for each school; and
(e) For residential transportation,
multiplies the per mile rate times the
annual transportation miles for each
school.

Subpart
H—Determining
the
Amount Necessary To Sustain
an Academic or Residential
Program
SOURCE: 70 FR 22205, Apr. 28, 2005, unless
otherwise noted.

§ 39.801 What is the formula to determine the amount necessary to sustain a school’s academic or residential program?
(a) The Secretary’s formula to determine the minimum annual amount
necessary to sustain a Bureau-funded
school’s academic or residential program is as follows:
Student Unit Value × Weighted Student Unit = Annual Minimum
Amount per student.
(b) Sections 39.802 through 39.807 explain the derivation of the formula in
paragraph (a) of this section.
(c) If the annual minimum amount
calculated under this section and
§§ 39.802 through 39.807 is not fully funded, OIEP will pro rate funds distributed
to schools using the Indian School
Equalization Formula.
§ 39.802 What is the student unit value
in the formula?
The student unit value is the dollar
value applied to each student in an
academic or residential program. There
are two types of student unit values:
the student unit instructional value
(SUIV) and the student unit residential
value (SURV).
(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
through 6 of a typical non-residential
program.
(b) The student unit residential value
(SURV) applies to a residential student. It is an annually established
ratio of 1.0 that represents a student in
grades 4 through 6 of a typical residential program.
§ 39.803 What is a weighted student
unit in the formula?
A weighted student unit is an adjusted ratio using factors in the Indian

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Bureau of Indian Affairs, Interior

§ 39.807

School Equalization Formula to establish educational priorities and to provide for the unique needs of specific
students, such as:
(a) Students in grades kindergarten
through 3 or grades 7 through 12;
(b) Special education students;
(c) Gifted and talented students;
(d) Distance education students;
(e) Vocational and industrial education students;
(f) Native Language Instruction students;
(g) Small schools;
(h) Personnel costs;
(i) Alternative schooling; and
(j) Early Childhood Education programs.
§ 39.804 How is the SUIV calculated?
The SUIV is calculated by the following 5-step process:
(a) Step 1. Use the adjusted national
average current expenditures (ANACE)
of public and private schools determined by data from the U.S. Depart-

ment of Education-National Center of
Education Statistics (NCES) for the
last school year for which data is available.
(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
and secondary schools for the last
school year for which data is available
as reported by NCES (15%).
(c) Step 3. Subtract the administrative cost grant/agency area technical
services revenue per student as a percentage of the total revenue (current
expenditures) of Bureau-funded schools
from the last year data 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 data is available.
(e) Step 5. Add Johnson O’Malley
funding. (See the table, in § 39.805)

§ 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
Step
Step
Step
Step

1
2
3
4
5

...................
...................
...................
...................
...................

$8,030
¥1205
¥993
¥658
85

ANACE.
Average specific Federal share of total revenue for Bureau-funded schools.
Cost grant/technical services revenue as a percentage total revenue.
Transportation revenue as a percentage of the total revenue.
Johnson O’Malley funding.

Total ..............

$5,259

SUIV.

§ 39.806

How is the SURV calculated?

(a) The SURV is the adjusted national average current expenditures for
residential schools (ANACER) of public
and private residential schools. This
average is determined using data from
the Association of Boarding Schools.
(b) Applying the procedure in paragraph (a) of this section, the SURV for
school year 1999–2000 was $11,000.

wwoods2 on DSKDVH8Z91PROD with CFR

§ 39.807 How will the Student Unit
Value be adjusted annually?
(a) The student unit instructional
value (SUIV) and the student unit residential value (SURV) will be adjusted
annually to derive the current year
Student Unit Value (SUV) by dividing

the calculated SUIV and the SURV
into two parts and adjusting each one
as shown in this section.
(1) The first part consists of 85 percent of the calculated SUIV and the
SURV. OIEP will adjust this portion
using the personnel cost of living increase of the Department of Defense
schools for each year.
(2) The second part consists of 15 percent the calculated SUIV and the
SURV. OIEP will adjust this portion
using the Consumer Price Index-Urban
of the Department of Labor.
(b) If the student unit value amount
is not fully funded, the schools will receive their pro rata share using the Indian School Equalization Formula.

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§ 39.808

25 CFR Ch. I (4–1–10 Edition)

§ 39.808 What definitions apply to this
subpart?
Adjusted National Average Current Expenditure [ANACE] means the actual
current expenditures for pupils in fall
enrollment in public elementary and
secondary schools for the last school
year for which data is available. These
expenditures are adjusted annually to
reflect current year expenditures of
federally financed schools’ cost of day
and residential programs.
Current expenditures means expenses
related to classroom instruction, classroom supplies, administration, support
services-students and other support
services and operations. Current expenditures do not include facility operations and maintenance, buildings and
improvements, furniture, equipment,
vehicles, student activities and debt retirement.
§ 39.809 Information collection.
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall any person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
(PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB)
Control Number. This part involves
collections of information subject to
the PRA in §§ 39.410 and 39.502. These
collections have been approved by OMB
under control numbers 1076–0122, 1076–
0134, and 1076–0163.

Subpart I—Interim Maintenance
and Minor Repair Fund

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SOURCE: 44 FR 61864, Oct. 26, 1979, unless
otherwise noted. Redesignated at 47 FR 13327,
Mar. 30, 1982. Redesignated at 70 FR 33702,
June 9, 2005.

§ 39.900 Establishment and funding of
an Interim Maintenance and Minor
Repair Fund.
There is established in the Division
of Facilities Management a separate
temporary fund entitled the Interim
Maintenance and Minor Repair Fund.
The Assistant Secretary shall cause
the distribution of an amount of $1 million, under the FY 1980 Appropriation

for the Bureau, from budget activity
3500, ‘‘General Management and Facilities Operation’’, to the direct use of
schools, and shall create an appropriate account or subaccount for the
Interim Maintenance and Minor Repair
Fund and credit these funds thereto.
§ 39.901 Conditions for distribution.
Funds from the Interim Maintenance
and Minor Repair Fund shall be distributed to Bureau operated and funded
schools and shall be separately earmarked in local school financial plans
solely for expenditure at the discretion
of the school supervisor for cost of
school facility maintenance and minor
repair. These funds shall be used to
meet immediate minor repair and
maintenance needs.
§ 39.902 Allocation.
(a) Interim Maintenance and Minor
Repair funds shall be allocated to all
Bureau operated and contract schools
based on the number of square feet of
floor space used for that school’s educational program, for student residence
and for support facilities. Staff quarters shall be specifically excluded from
the computation.
(b) Square footage figures used in determining school allocations shall be
taken from the facilities inventory
maintained by the Division of Facilities Engineering.
(c) In those cases, such as contract
schools, where square footage figures
are not now available, it shall be the
responsibility of the Bureau’s Division
of Facilities Engineering to correct the
information.
(d) Schools in Alaska shall receive a
25% cost adjustment increase in the
computation of their allocation.
§ 39.903 Use of funds.
Funds allocated under this provision
for maintenance and minor repair shall
be used for no other purpose.
§ 39.904 Limitations.
Nothing in this provision shall be interpreted as relieving the Bureau
branch of Facilities Management or its
field offices of any responsibility for
continuing to provide maintenance and
repair service to schools through existing procedures.

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Bureau of Indian Affairs, Interior

§ 39.1100

Subpart J—Administrative Cost
Formula
SOURCE: 56 FR 35795, July 26, 1991, unless
otherwise noted. Redesignated at 70 FR 33702,
June 9, 2005.

§ 39.1000 Purpose and scope.
The purpose of this subpart is to provide funds at the agency and area education offices for FY 1991 and future
years for administration of all Bureau
of Indian Affairs education functions,
including but not limited to school operations, continuing education, early
childhood education, post-secondary
education and Johnson-O’Malley Programs.

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§ 39.1001 Definitions.
(a) Agency Education Office means a
field office of the Office of Indian Education Programs providing administrative direction and supervision to one or
more Bureau-operated schools as well
as being responsible for all other education functions serving tribes within
that agency’s jurisdiction.
(b) Area Education Office means a
field office of the Office of Indian Education Programs responsible for all
education functions serving tribes not
serviced by an agency education office
an in some cases providing administrative direction to one or more off-reservation boarding schools not under an
agency education office.
§ 39.1002 Allotment of education administrative funds.
The total annual budget for agencies/
areas shall be allotted to the Director
and through him/her to agency and
area education offices. This total budget shall be distributed to the various
agency and area education offices as
follows:
(a) Each agency or area education office as defined above shall receive a
base amount of $50,000 for basic administrative costs; and
(b) Each agency or area education office as defined above shall receive an
amount under these funds equal to two
percent of the total higher education,
Johnson-O’Malley and adult education
funds administered by each office, except that the Navajo Agencies are restricted to a maximum of $50,000 for ad-

ministering the Johnson-O’Malley and
higher education programs; and
(c) Eighty percent of the remaining
funds shall be distributed proportionately based on the number of schools
operated under the jurisdiction of each
agency or area education office, with
Bureau-operated schools counting as 1
and contract/grant schools counting as
0.6; and
(d) The remaining twenty percent
shall be distributed proportionately
based on the total weighted student
units generated by all schools under
the jurisdiction of each agency or area
education office.
§ 39.1003 Allotment exception for FY
1991.
For FY 1991 only, the Director may
reserve an amount equal to no more
than one half of the funds received in
FY 1990 by those offices to be closed in
FY 1991 to cover severance pay costs,
lump sum leave payments and relocation costs for those individuals affected
by the closures. Any balance uncommitted by March 31, 1991, shall be distributed in accordance with the formula in § 39.122.

Subpart K—Pre-kindergarten
Programs
SOURCE: 44 FR 61864, Oct. 26, 1979, unless
otherwise noted. Redesignated at 47 FR 13327,
Mar. 30, 1982. Redesignated at 70 FR 33702,
June 9, 2005.

§ 39.1100 Interim fiscal year 1980 and
fiscal year 1981 funding for pre-kindergarten
programs
previously
funded by the Bureau.
Those schools having pre-kindergarten programs funded fully or in part
from Bureau education funds in fiscal
year 1979 shall be funded from Bureau
education funds by the Director in fiscal year 1980 and fiscal year 1981 at
their fiscal year 1979 Bureau education
funding levels. The fiscal year 1979 prekindergarten Bureau funding amount
for each Bureau funded school shall be
deducted from the school’s fiscal year
1979 Bureau Education Budget amount

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§ 39.1101

25 CFR Ch. I (4–1–10 Edition)

prior to application of the phase-in provision.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47
FR 13327, Mar. 30, 1982. Redesignated and
amended at 70 FR 33702, June 9, 2005]

§ 39.1101 Addition of pre-kindergarten
as a weight factor to the Indian
School Equalization Formula in fiscal year 1982.
The Director, in consultation with
the tribes and school boards, shall determine appropriate weight factors
needed to include pre-kindergarten
programs in the Indian School Equalization Formula in fiscal year 1982.
Based on a needs assessment, to be
completed by January 1, 1980, pre-kindergarten programs shall be included
in the Bureau’s education request for
fiscal year 1982.

Subpart L—Contract School
Operation and Maintenance Fund
SOURCE: 44 FR 61864, Oct. 26, 1979, unless
otherwise noted. Redesignated at 70 FR 33702,
June 9, 2005.

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§ 39.1200 Definitions.
Contract school operation and maintenance costs for fiscal year 1979 means
the sum of costs for custodial salaries
and fringe benefits, related supplies
and equipment and equipment repair,
insurance, and school operation utilities costs, where such costs are not
paid by the Division of Facilities Management or other noneducation Bureau
sources.
§ 39.1201 Establishment of an interim
fiscal year 1980 operation and
maintenance fund for contract
schools.
There is established in the Division
of Facilities Management a separate
fund entitled the Contract School Operation and Maintenance Fund. The
Secretary shall cause the distribution
of an amount of $2.5 million, under the
fiscal year 1980 appropriation for the
Bureau, from budget activity 3500.
‘‘General Management and Facilities
Operations’’, to the schools through
this fund and shall create an appropriate account or subaccount for the
Contract School Operation and Maintenance Fund.

§ 39.1202 Distribution of funds.
(a) Each contract school shall receive
in fiscal year 1980 a portion of the Contract School Operation and Maintenance Fund determined by the percentage share which that school’s fiscal
year 1979 operation and maintenance
cost represents in the total fiscal year
1979 operation and maintenance cost
for all such schools.
(b) To be eligible for these funds, a
contract school shall submit a detailed
report of actual operation and maintenance costs for fiscal year 1979 to the
Director by November 23, 1979. These
cost figures will be subject to
verification by the Director to assure
their accuracy prior to the allotment
of any funds under this subpart.
(c) Any funds generated under this
subpart shall be included in the computation of the phase-in amount if supplemental operation and maintenance
funds were included in a school’s fiscal
year 1979 3100 contract funds.
[44 FR 61864, Oct. 26, 1979, unless otherwise
noted. Redesignated at 47 FR 13327, Mar. 30,
1982. Redesignated and amended at 70 FR
33702, June 9, 2005]

§ 39.1203 Future consideration of contract school operation and maintenance funding.
The Assistant Secretary shall arrange for full funding for operation and
maintenance of contract schools by fiscal year 1981.

PART 40—ADMINISTRATION OF
EDUCATIONAL LOANS, GRANTS
AND OTHER ASSISTANCE FOR
HIGHER EDUCATION
Sec.
40.1
40.2
40.3
40.4
40.5

Appropriations for loans or grants.
Working scholarships.
Applications.
Security.
Repayments.

AUTHORITY: Sec. 11, 48 Stat. 986; 25 U.S.C.
471.
SOURCE: 22 FR 10533, Dec. 24, 1957, unless
otherwise noted. Redesignated at 47 FR 13327,
Mar. 30, 1982.

§ 40.1 Appropriations for loans or
grants.
Funds appropriated by Congress for
the education of Indians may be used

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