§ 186.25 Adjustments where necessitated by appropriations.

(a) Ratable reductions. As prescribed by section 307(a) of the act, if the sums appropriated for a fiscal year for making payments under this part are not sufficient to pay in full the total amounts which all local educational agencies are eligible to receive under this part for such fiscal year (as determined in accordance with § 186.21), the Commissioner will ratably reduce the maximum amounts which all such agencies are eligible to receive under this part for such year.

(20 U.S.C. 241ff(a))

(b) Reallocation of funds. (1) In any fiscal year in which the maximum amounts for which local educational agencies are eligible under this part have been ratably reduced in accordance with paragraph (a) of this section (and in which additional funds have not been made available to pay in full such maximum amounts), the Commissioner shall fix a date or dates by appropriate notice for the reporting, by each local educational agency which is eligible for a grant under this part determined in accordance with § 186.21, of the amount of funds available to such agency under this part which it estimates it would expend under an approved application. If such agency is applying for a grant under this part, its estimate shall set forth a detailed projection of the amount it deems necessary for carrying out its proposed project relative to the amount available to it under this part. The Commissioner shall, in fixing such date or dates, notify local educational agencies which are eligible for assistance under this part that the failure to file an application pursuant to subpart B of this part, by such date or dates, will result in the reallocation of the ratably reduced maximum amounts which such agencies are eligible to receive under this part to other eligible local educational agencies pursuant to this section.

(2) Following the submission of such reports, the Commissioner will determine those local educational agencies which will need additional funds to carry out approved applications under this part. Such additional funds may

be allocated to such agencies by the Commissioner (i) from amounts which he determines in accordance with subparagraph (1) of this paragraph, will not be used by local educational agencies during their period of availability and (ii) from amounts which he determines would have been available to local educational agencies that did not submit approvable applications and will not be used by such agencies.

(3) No amount may be reallocated to a local educational agency under paragraph (b)(2) of this section, if such amount, when added to the amount available to such agency in accordance with paragraph (a) of this section, exceeds the maximum grant for which such agency is eligible in accordance with § 186.21.

(20 U.S.C. 241ff)

§§ 186.27-186.30 [Reserved]

Subpart D-Nonlocal Educational Agencies

AUTHORITY: Pub. L. 81-874, Title III, as added by Title IV, Part A, Education Amendments of 1972, 86 Stat. 334 (20 U.S.C. 241aa-241ff).

SOURCE: 39 FR 22424, June 24, 1974, unless otherwise noted.

§ 186.31 Eligibility; purpose.

(a) The Commissioner may, in accordance with section 303(b) of the Act (as defined in § 186.2), provide financial assistance to schools on or near reservations which are: (1) Nonlocal educational agencies (as defined in § 186.2) or (2) local educational agenIcies (i) which have been local educational agencies for less than three years, and (ii) which enroll a substantial proportion of Indian children, and (3) which best satisfy the selection criteria set forth in § 186.33.

(b) Assistance under this subpart is to be used for the purpose of developing and carrying out, in such agencies, elementary and secondary school programs specially designed to meet the special educational needs of Indian students.

(c) Assistance may be made available under this subpart to meet the costs

incurred in connection with the establishment of such agencies.

(20 U.S.C. 241bb(b); S. Rept. 92-346, 92d Cong., 1st Sess. 1971, p. 99)

§ 186.32 Eligibility factors.

(a) Eligibility of nonlocal educational agencies. In determining whether an applicant is a nonlocal educational agency (as defined in § 186.2), eligible to apply for assistance under this subpart, the Commissioner shall consider such factors as the following:

(1) Whether the governing body of the school or school system was selected by, is representative of, and is solely responsible to the Indian tribe or community which that school or school system serves; and

(2) Whether the governing body derives authority from such community to carry out such functions as:

(i) Employing, managing, and terminating personnel;

(ii) Developing and revising curricula;

(iii) Establishing attendance, academic, and other relevant standards; (iv) Developing and approving budgets;

(v) Establishing operational policies; and

(vi) Raising funds.

(b) Applications of nonlocal educational agencies. To assist the Commissioner in making eligibility determinations regarding nonlocal educational agencies, an application shall contain:

(1) Adequate documentation of the authority to carry out the functions contained in paragraph (a) of this section such as:

(i) Incorporation certificate or other organizational charter;

(ii) By-laws or charter;

(iii) Contract or other agreement to administer the school or school system;

(iv) A certified description of the duties of the governing body; and

(2) A description of the policies under which the governing body carries out the functions described in paragraph (a) of this section.

(c) Applications of local educational agencies. To assist the Commissioner in making eligibility determinations regarding local educational agencies, an application shall contain certified

documentation of the date on which that agency was established as a local educational agency.

(20 U.S.C. 241bb(b))

§ 186.33 Criteria for selection of applications.

(a) In considering whether to approve applications, and in determining the amount of the awards under approved applications, the Commissioner will take into account, in addition to criteria contained in 45 CFR 100a.26(b), criteria such as the following:

(1) The number of Indian children enrolled in the agency applying for assistance, and the number that would be involved in the proposed program or project;

(2) The degree to which costs for which assistance is sought are connected to start up costs incurred in the establishment of community control of a school or school system or of a new local educational agency;

(3) The degree to which the program or project to be assisted addresses the particular educational and cultural needs of Indian children;

(4) The degree to which the proposed program or project offers activities and services not previously available to Indian children in sufficient quantity or quality;

(5) The adequacy of planning to provide significant long-term improvement of educational opportunities for the Indian children to be served by the school system;

(6) The degree to which the proposed program or project is related to the educational plan and priorities of the Indian community to be served; and

(7) Whether the application satisfies appropriate requirements of Subpart B of this Part.

(b) Applications submitted under this subpart must satisfy the following requirements of Subpart B of this

Part:

(1) Sections 186.11 and 186.12, dealing with required contents of applications;

(2) Section 186.13(b), requiring utilization of the best available talents and resources (including persons from the Indian community);

(3) Sections 186.13(c)(1) and 186.17, requiring an assurance that the proposed program or project will be developed, operated and evaluated in open consultation with the Indian community, including at least one public hearing at which all interested community members will have an opportunity to understand the program and to offer recommendations thereon; and

(4) Section 186.14, describing appropriate subjects for discussion at the public hearing required in paragraph (b)(3) of this section.

(c) Applications submitted under this subpart are not required to satisfy the provisions in §§ 186.13(c)(2) and 186.15-186.17 of Subpart B of this Part relating to the nomination, selection, and functions of a Parent Committee. (20 U.S.C. 241dd(b)(2))

187.81

Subpart 1-Administrative Standards

General.

187.82 Conflict of interest and nepotism. 187.83 Documents and procedures. 187.84 Violation of grant terms and conditions.

AUTHORITY: Elementary and Secondary Education Act of 1965, as amended by Indian Education Act, Part B, title IV of Pub. L. 93-18 as amended by Part C of title VI of Pub. L. 93-380 (20 U.S.C. 887C-2).

SOURCE: 42 FR 32784, June 28, 1977, unless otherwise noted.

Subpart A-Scope; Definitions; General Provisions; Applicable Related Statute

§ 187.1 Scope.

This part governs: (a) The provision of assistance to State and local educational agencies; Indian tribes, Indian organizations, and Indian institutions;

Federally supported elementary and secondary schools for Indian children; and public agencies and institutions of higher education for carrying out special programs to improve educational opportunities for Indian children under the appropriate subsection of section 810 of the Indian Education Act, as amended;

(b) The provision of assistance to institutions of higher education, Indian organizations, and Indian tribes for special programs to prepare educators of Indian children under section 422 of the Indian Education Act; and

(c) The awarding of fellowships in business, engineering, law, medicine forestry, and related fields to Indian students in graduate and professional programs at institutions of higher education under section 423 of the Indian Education Act.

(20 U.S.C. 887c, 887c-1, and 887c-2)

§ 187.2 Definitions.

As used in this part:

"Academic year" means a period of time, generally of not less than eight months, in which a full-time student would normally be expected to complete the equivalent of two semesters, two trimesters, three quarters, or 900 clock hours of instruction.

(20 U.S.C. 887c-2)

"Allowance for dependents” means a payment, in a sum approved by the Commissioner, to a recipient of a fellowship, or to a participant in a training program on account of his or her dependents, if any.

"Ancillary educational personnel" means guidance counselors, school administrators, librarians, and others working in education programs, to the extent that they continue to meet the special educational needs of Indian children. This term does not include persons in positions such as clerk, cafeteria personnel, or other jobs not involved in the educational process.

"Community" means an Indian reservation, neighborhood or other area (irrespective of boundaries of political subdivisions) which provides a suitable organizational base and possesses the commonality of educational interest needed to provide services to a designated constituency. (45 CFR 1336.1)

"Comprehensive educational model" means an educational program which addresses the needs of the total child: academic, social, cultural, emotional, and physical.

"Cost of education allowance" means a payment to an institution of higher education attended by the holder of a fellowship under Subpart F, G, or H, in a sum approved by the Commissioner to cover the cost of tuition and fees on behalf of that fellow. "Demonstration or pilot programs and projects" means programs and projects normally of one to three years in duration which demonstrate a unique educational concept, in theory and/or implementation, and whose applicability may be replicated by other programs or projects.

"Dependent" means any of the fol lowing persons over half of whose support, for the calendar year in which the school year begins, was received from the student:

(a) A spouse;

(b) A child, or descendant of such child, or stepchild;

(c) A brother or sister;

(d)A brother or sister by half blood; (e) A stepbrother or stepsister;

(f) A parent or ancestor of such parent;

(g) A stepfather or stepmother;

(h) A son or daughter or student's father or mother;

(i) A son-in-law, or daughter-in-law, or father-in-law, or mother-in-law, or brother-in-law, or sister-in-law;

(j) A person (other than the student's spouse) who, during the student's entire calendar year, lives in the student's home and is a member of the student's household (but not if the relationship between the person and the student is in violation of local law); or

(k) A cousin (descendant of a brother or sister of the student's father or mother) who, during the student's calendar year, is receiving institutional care on account of a physical or mental disability and before receiving this care was a member of the same household as the student.

A legally adopted child or child placed in the student's home for adoption by an authorized agency is considered to be a child by blood. A citizen of a foreign country may not be claimed as a dependent, unless the citizen is a

resident of the United States, Canada, Mexico, Panama, or the Canal Zone, at some time during the calendar year in which the school year of the student begins, or is a resident of the Philippines born to, or adopted by, a student while a member of the Armed Forces, before January 1, 1956, or is an alien child legally adopted by and living with a student as a member of the student's household for the entire calendar year.

"Educational model" means a demonstration program that has a structured program design which offers innovative alternatives to meet the educational needs of the Indian child. The program design may be structured around one or more curricula units or support services. The needs and resources of the community are to be included in the development of the educational model to ensure maximum benefit to the child and the community.

"Exemplary program"

means an

educational program, service, or activity designed to be so educationally effective or outstanding that it could be identified as a promising solution to a basic Indian education problem. (20 U.S.C. 887c (a)(2) and (c))

needs, and career and vocational interests; and

(b) Assistance in personal and social development, including the development of a positive self-concept for Indian children and their parents.

(20 U.S.C. 887c(c)(1)(D))

“Handicapped children” means mentally retarded, hard-of-hearing, deaf, speech-impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health-impaired children or children with specific learning disabilities, who by reason thereof require special educational and related services.

living on or off a reservation, who is:

(a) A member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(b) Considered by the Secretary of the Interior to be an Indian for any purpose; or

(c) An Eskimo or Aleut or other Alaska Native.

(20 U.S.C. 1221h)

"Indian institution" means a preschool, elementary, secondary or postsecondary school established for the promotion of education of Indians which is:

(a) Controlled by a governing body, the majority of which is Indian; and

(b) If located on an Indian reservation, operates with the sanction or by charter of that Tribe(s).

"Indian organization" means an organization which:

(a) Is legally established, by Tribal Charter or in accordance with State law with appropriate Constitution, bylaws and/or Articles of Incorporation;

(b) Has the primary purpose of promoting the educational, economic, or social self-sufficiency of Indians;

(c) Has a governing board and membership composed of a majority of Indians;