25 U.S.C. § 2008 — Administrative cost grants

Page 412 TITLE 25—INDIANS § 2008 2 So in original. Probably should be section ‘‘2010’’. (f) Eligible Indian student defined In this section, the term ‘‘eligible Indian stu- dent’’ means a student who— (1) is a member of, or is at least one-fourth degree Indian blood descendant of a member of, a tribe that is eligible for the special pro- grams and services provided by the United States through the Bureau 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-res- ervation home-living school; and (3) is enrolled in a Bureau-funded school. (g) Tuition (1) In general No eligible Indian student or a student at- tending a Bureau school under paragraph (2)(C) may be charged tuition for attendance at a Bureau school or contract or grant school. (2) Attendance of non-Indian students at Bu- reau schools The Secretary may permit the attendance at a Bureau school of a student who is not an eli- gible Indian student if— (A) the Secretary determines that the stu- dent’s attendance will not adversely affect the school’s program for eligible Indian stu- dents because of cost, overcrowding, or vio- lation of standards or accreditation; (B) the school board consents; (C) the student is a dependent of a Bureau, Indian Health Service, or tribal government employee who lives on or near the school site; or (D) tuition is paid for the student that is not more than the tuition charged by the nearest public school district for out-of-dis- trict students and shall be in addition to the school’s allocation under this section. (3) Attendance of non-Indian students at con- tract and grant schools The school board of a contract or grant school may permit students who are not eligi- ble Indian students under this subsection to attend its contract school or grant school. Any tuition collected for those students shall be in addition to funding received under this section. (h) Funds available without fiscal year limitation Notwithstanding any other provision of law, at the election of the school board of a Bureau school made at any time during the fiscal year, a portion equal to not more than 15 percent of the funds allocated with respect to a school under this section for any fiscal year shall re- main available to the school for expenditure without fiscal year limitation. The Assistant Secretary shall take such steps as are necessary to implement this subsection. (i) Students at Richfield dormitory, Richfield, Utah (1) In general Tuition for the instruction of each out-of- State Indian student in a home-living situa- tion at the Richfield dormitory in Richfield, Utah, who attends Sevier County high schools in Richfield, Utah, for an academic year, shall be paid from Indian school equalization pro- gram funds authorized in this section and sec- tion 2009 2 of this title, at a rate not to exceed the weighted amount provided for under sub- section (b) for a student for that year. (2) No administrative cost funds No additional administrative cost funds shall be provided under this chapter to pay for administrative costs relating to the instruc- tion of the students. (Pub. L. 95–561, title XI, § 1127, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2028.) Editorial Notes PRIOR PROVISIONS A prior section 2007, Pub. L. 95–561, title XI, § 1127, as added Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3989, related to allotment formula, prior to the general amendment of this chapter by Pub. L. 107–110. Another prior section 2007, Pub. L. 95–561, title XI, § 1127, Nov. 1, 1978, 92 Stat. 2320, related to policies and procedures for implementation of transferred adminis- trative functions, prior to the general amendment of this chapter by Pub. L. 103–382. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 8, 2002, except with respect to certain noncompetitive programs and competitive pro- grams, see section 5 of Pub. L. 107–110, set out as a note under section 6301 of Title 20, Education. § 2008. Administrative cost grants (a) Definitions In this section: (1) Administrative cost (A) In general The term ‘‘administrative cost’’ means the cost of necessary administrative functions which— (i) the tribe or tribal organization incurs as a result of operating a tribal elemen- tary or secondary educational program; (ii) are not customarily paid by com- parable Bureau-operated programs out of direct program funds; and (iii) are either— (I) normally provided for comparable Bureau programs by Federal officials using resources other than Bureau direct program funds; or (II) are otherwise required of tribal self-determination program operators by law or prudent management practice. (B) Inclusions The term ‘‘administrative cost’’ may in- clude— (i) contract or grant (or other agree- ment) administration; (ii) executive, policy, and corporate lead- ership and decisionmaking; (iii) program planning, development, and management; (iv) fiscal, personnel, property, and pro- curement management; Page 413 TITLE 25—INDIANS § 2008 (v) related office services and record keeping; and (vi) costs of necessary insurance, audit- ing, legal, safety and security services. (2) Bureau elementary and secondary func- tions The term ‘‘Bureau elementary and sec- ondary functions’’ means— (A) all functions funded at Bureau schools by the Office; (B) all programs— (i) funds for which are appropriated to other agencies of the Federal Government; and (ii) which are administered for the ben- efit of Indians through Bureau schools; and (C) all operation, maintenance, and repair funds for facilities and Government quarters used in the operation or support of elemen- tary and secondary education functions for the benefit of Indians, from whatever source derived. (3) Direct cost base (A) In general Except as otherwise provided in subpara- graph (B), the direct cost base of a tribe or tribal organization for the fiscal year is the aggregate direct cost program funding for all tribal elementary or secondary edu- cational programs operated by the tribe or tribal organization during— (i) the second fiscal year preceding such fiscal year; or (ii) if such programs have not been oper- ated by the tribe or tribal organization during the 2 preceding fiscal years, the first fiscal year preceding such fiscal year. (B) Functions not previously operated In the case of Bureau elementary or sec- ondary education functions which have not previously been operated by a tribe or tribal organization under contract, grant, or agree- ment with the Bureau, the direct cost base for the initial year shall be the projected ag- gregate direct cost program funding for all Bureau elementary and secondary functions to be operated by the tribe or tribal organi- zation during that fiscal year. (4) Maximum base rate The term ‘‘maximum base rate’’ means 50 percent. (5) Minimum base rate The term ‘‘minimum base rate’’ means 11 percent. (6) Standard direct cost base The term ‘‘standard direct cost base’’ means $600,000. (7) Tribal elementary or secondary educational programs The term ‘‘tribal elementary or secondary educational programs’’ means all Bureau ele- mentary and secondary functions, together with any other Bureau programs or portions of programs (excluding funds for social services that are appropriated to agencies other than the Bureau and are funded through the Bu- reau, funds for major subcontracts, construc- tion, and other major capital expenditures, and unexpended funds carried over from prior years) which share common administrative cost functions, that are operated directly by a tribe or tribal organization under a contract, grant, or agreement with the Bureau. (b) Grants; effect upon appropriated amounts (1) Grants Subject to the availability of funds, the Sec- retary shall provide grants to each tribe or tribal organization operating a contract school or grant school in the amount deter- mined under this section with respect to the tribe or tribal organization for the purpose of paying the administrative and indirect costs incurred in operating contract or grant schools, provided that no school operated as a stand-alone institution shall receive less than $200,000 per year for these purposes, in order to— (A) enable tribes and tribal organizations operating such schools, without reducing di- rect program services to the beneficiaries of the program, to provide all related adminis- trative overhead services and operations necessary to meet the requirements of law and prudent management practice; and (B) carry out other necessary support func- tions which would otherwise be provided by the Secretary or other Federal officers or employees, from resources other than direct program funds, in support of comparable Bu- reau-operated programs. (2) Effect upon appropriated amounts Amounts appropriated to fund the grants provided under this section shall be in addi- tion to, and shall not reduce, the amounts ap- propriated for the program being administered by the contract or grant school. (c) Determination of grant amount (1) In general The amount of the grant provided to each tribe or tribal organization under this section for each fiscal year shall be determined by ap- plying the administrative cost percentage rate of the tribe or tribal organization to the ag- gregate of the Bureau elementary and sec- ondary functions operated by the tribe or trib- al organization for which funds are received from or through the Bureau. (2) Direct cost base funds The Secretary shall— (A) reduce the amount of the grant deter- mined under paragraph (1) to the extent that payments for administrative costs are actu- ally received by an Indian tribe or tribal or- ganization under any Federal education pro- gram included in the direct cost base of the tribe or tribal organization; and (B) take such actions as may be necessary to be reimbursed by any other department or agency of the Federal Government for the portion of grants made under this section for the costs of administering any program for Indians that is funded by appropriations made to such other department or agency. Page 414 TITLE 25—INDIANS § 2008 (d) Administrative cost percentage rate (1) In general For purposes of this section, the administra- tive cost percentage rate for a contract or grant school for a fiscal year is equal to the percentage determined by dividing— (A) the sum of— (i) the amount equal to— (I) the direct cost base of the tribe or tribal organization for the fiscal year, multiplied by (II) the minimum base rate; plus (ii) the amount equal to— (I) the standard direct cost base; multi- plied by (II) the maximum base rate; by (B) the sum of— (i) the direct cost base of the tribe or tribal organization for the fiscal year; plus (ii) the standard direct cost base. (2) Rounding The administrative cost percentage rate shall be determined to the 1⁄100 of a decimal point. (3) Applicability The administrative cost percentage rate de- termined under this subsection shall not apply to other programs operated by the tribe or tribal organization. (e) Combining funds (1) In general Funds received by a tribe or contract or grant school as grants under this section for tribal elementary or secondary educational programs may be combined by the tribe or contract or grant school into a single adminis- trative cost account without the necessity of maintaining separate funding source account- ing. (2) Indirect cost funds Indirect cost funds for programs at the school which share common administrative services with tribal elementary or secondary educational programs may be included in the administrative cost account described in para- graph (1). (f) Availability of funds Funds received as grants under this section with respect to tribal elementary or secondary education programs shall remain available to the contract or grant school without fiscal year limitation and without diminishing the amount of any grants otherwise payable to the school under this section for any fiscal year beginning after the fiscal year for which the grant is pro- vided. (g) Treatment of funds Funds received as grants under this section for Bureau-funded programs operated by a tribe or tribal organization under a contract or agree- ment shall not be taken into consideration for purposes of indirect cost underrecovery and overrecovery determinations by any Federal agency for any other funds, from whatever source derived. (h) Treatment of entity operating other pro- grams In applying this section and section 106 of the Indian Self-Determination and Education As- sistance Act [25 U.S.C. 5325] with respect to an Indian tribe or tribal organization that— (1) receives funds under this section for ad- ministrative costs incurred in operating a con- tract or grant school or a school operated under the Tribally Controlled Schools Act of 1988 [25 U.S.C. 2501 et seq.]; and (2) operates one or more other programs under a contract or grant provided under the Indian Self-Determination and Education As- sistance Act [25 U.S.C. 5301 et seq.], the Secretary shall ensure that the Indian tribe or tribal organization is provided with the full amount of the administrative costs that are as- sociated with operating the contract or grant school, and of the indirect costs, that are associ- ated with all of such other programs, except that funds appropriated for implementation of this section shall be used only to supply the amount of the grant required to be provided by this section. (i) Studies for determination of factors affecting costs; base rates limits; standard direct cost base; report to Congress (1) Studies Not later than 120 days after January 8, 2002, the Director of the Office of Indian Education Programs shall— (A) conduct such studies as may be needed to establish an empirical basis for deter- mining relevant factors substantially affect- ing required administrative costs of tribal elementary and secondary education pro- grams, using the formula set forth in sub- section (c); and (B) conduct a study to determine— (i) a maximum base rate which ensures that the amount of the grants provided under this section will provide adequate (but not excessive) funding of the adminis- trative costs of the smallest tribal elemen- tary or secondary educational programs; (ii) a minimum base rate which ensures that the amount of the grants provided under this section will provide adequate (but not excessive) funding of the adminis- trative costs of the largest tribal elemen- tary or secondary educational programs; and (iii) a standard direct cost base which is the aggregate direct cost funding level for which the percentage determined under subsection (d) will— (I) be equal to the median between the maximum base rate and the minimum base rate; and (II) ensure that the amount of the grants provided under this section will provide adequate (but not excessive) funding of the administrative costs of tribal elementary or secondary edu- cational programs closest to the size of the program. (2) Guidelines The studies required under paragraph (1) shall— Page 415 TITLE 25—INDIANS § 2008 1 So in original. 2 So in original. Probably should be preceded by ‘‘the’’. (A) be conducted in full consultation (in accordance with section 2011 of this title) with— (i) the tribes and tribal organizations that are affected by the application of the formula set forth in subsection (c); and (ii) all national and regional Indian orga- nizations of which such tribes and tribal organizations are typically members; (B) be conducted onsite with a representa- tive statistical sample of the tribal elemen- tary or secondary educational programs under a contract entered into with a nation- ally reputable public accounting and busi- ness consulting firm; (C) take into account the availability of skilled labor commodities, business and automatic data processing services, related Indian preference and Indian control of edu- cation requirements, and any other market factors found to substantially affect the ad- ministrative costs and efficiency of each such tribal elementary or secondary edu- cational program studied in order to ensure that all required administrative activities can reasonably be delivered in a cost effec- tive manner for each such program, given an administrative cost allowance generated by the values, percentages, or other factors found in the studies to be relevant in such formula; (D) identify, and quantify in terms of per- centages of direct program costs, any gen- eral factors arising from geographic isola- tion, or numbers of programs administered, independent of program size factors used to compute a base administrative cost percent- age in such formula; and (E) identify any other incremental cost factors substantially affecting the costs of required administrative cost functions at any of the tribal elementary or secondary educational programs studied and determine whether the factors are of general applica- bility to other such programs, and (if so) how the factors may effectively be incor- porated into such formula. (3) Consultation with Inspector General In carrying out the studies required under this subsection, the Director shall obtain the input of, and afford an opportunity to partici- pate to, the Inspector General of the Depart- ment of the Interior. (4) Consideration of delivery of administrative services Determinations described in paragraph (2)(C) shall be based on what is practicable at each location studied, given prudent management practice, irrespective of whether required ad- ministrative services were actually or fully delivered at these sites, or whether other serv- ices were delivered instead, during the period of the study. (5) Report Upon completion of the studies conducted under paragraph (1), the Director shall submit to Congress a report on the findings of the studies, together with determinations based upon such studies that would affect the defini- tions set forth under subsection (e) that are used in the formula set forth in subsection (c). (6) Projection of costs The Secretary shall include in the Bureau’s justification for each appropriations request beginning in the first fiscal year after the completion of the studies conducted under paragraph (1), a projection of the overall costs associated with the formula set forth in sub- section (c) for all tribal elementary or sec- ondary education programs which the Sec- retary expects to be funded in the fiscal year for which the appropriations are sought. (7) Determination of program size For purposes of this subsection, the size of tribal elementary or secondary educational programs is determined by the aggregate di- rect cost program funding level for all Bureau- funded programs which share common admin- istrative cost functions. (j) Authorization of appropriations (1) In general There are authorized to be appropriated to carry out this section such sums as may be necessary. (2) Reductions If the total amount of funds necessary to provide grants to tribes and tribal organiza- tions in the amounts determined under sub- section (c) for a fiscal year exceeds the amount of funds appropriated to carry out this section for such fiscal year, the Secretary shall reduce the amount of each grant deter- mined under subsection (c) for such fiscal year by an amount that bears the same relationship to such excess as the amount of such grants determined under subsection (c) bears to the total of all grants determined under sub- section (c) section 1 for all tribes and tribal or- ganizations for such fiscal year. (k) Applicability to schools operating under Trib- ally Controlled Schools Act of 1988 The provisions of this section shall apply to schools operating under the Tribally Controlled Schools Act of 1988 [25 U.S.C. 2501 et seq.]. (l) Administrative cost grant budget requests (1) In general Beginning with President’s 2 annual budget request under section 1105 of title 31 for fiscal year 2002, and with respect to each succeeding budget request, at the discretion of the Sec- retary, the Secretary shall submit to the ap- propriate committees of Congress information and funding requests for the full funding of ad- ministrative costs grants required to be paid under this section. (2) Requirements (A) Funding for new conversions to contract or grant school operations With respect to a budget request under paragraph (1), the amount required to pro- vide full funding for an administrative cost Page 416 TITLE 25—INDIANS § 2009 grant for each tribe or tribal organization expected to begin operation of a Bureau- funded school as contract or grant school in the academic year funded by such annual budget request, the amount so required shall not be less than 10 percent of the amount re- quired for subparagraph (B). (B) Funding for continuing contract and grant school operations With respect to a budget request under paragraph (1), the amount required to pro- vide full funding for an administrative cost grant for each tribe or tribal organization operating a contract or grant school at the time the annual budget request is sub- mitted, which amount shall include the amount of funds required to provide full funding for an administrative cost grant for each tribe or tribal organization which began operation of a contract or grant school with administrative cost grant funds supplied from the amount described in sub- paragraph (A). (Pub. L. 95–561, title XI, § 1128, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2032.) Editorial Notes REFERENCES IN TEXT The Tribally Controlled Schools Act of 1988, referred to in subsecs. (h)(1) and (k), is part B (§§ 5201–5212) of title V of Pub. L. 100–297, Apr. 28, 1988, 102 Stat. 385, which is classified generally to chapter 27 (§ 2501 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2501 of this title and Tables. The Indian Self-Determination and Education Assist- ance Act, referred to in subsec. (h)(2), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which is classified principally to chapter 46 (§ 5301 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. PRIOR PROVISIONS A prior section 2008, Pub. L. 95–561, title XI, § 1128, as added Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3993, related to administrative cost grants, prior to the general amendment of this chapter by Pub. L. 107–110. Another prior section 2008 and a prior section 2008a were omitted in the general amendment of this chapter by Pub. L. 103–382. Section 2008, Pub. L. 95–561, title XI, § 1128, Nov. 1, 1978, 92 Stat. 2320; Pub. L. 96–46, § 2(b)(7), (8), Aug. 6, 1979, 93 Stat. 341; Pub. L. 98–511, title V, § 505, Oct. 19, 1984, 98 Stat. 2394; Pub. L. 99–89, § 5, Aug. 15, 1985, 99 Stat. 381; Pub. L. 99–228, § 1, Dec. 28, 1985, 99 Stat. 1747; Pub. L. 100–297, title V, §§ 5107(a), 5108(b), (c), Apr. 28, 1988, 102 Stat. 368, 375; Pub. L. 100–427, §§ 2(a), (b)(1), (c), 3, 5, Sept. 9, 1988, 102 Stat. 1604, 1605; Pub. L. 101–301, § 5(d)(1), May 24, 1990, 104 Stat. 208; Pub. L. 103–382, title III, § 393(b), Oct. 20, 1994, 108 Stat. 4026, related to allot- ment formula. Section 2008a, Pub. L. 95–561, title XI, § 1128A, as added Pub. L. 100–297, title V, § 5108(a), Apr. 28, 1988, 102 Stat. 369; amended Pub. L. 100–427, § 4, Sept. 9, 1988, 102 Stat. 1604; Pub. L. 101–301, § 5(f), May 24, 1990, 104 Stat. 208, related to administrative cost grants. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 8, 2002, except with respect to certain noncompetitive programs and competitive pro- grams, see section 5 of Pub. L. 107–110, set out as a note under section 6301 of Title 20, Education. § 2009. Division of Budget Analysis (a) Establishment Not later than 1 year after January 8, 2002, the Secretary shall establish within the Office of In- dian Education Programs a Division of Budget Analysis (hereafter in this section referred to as the ‘‘Division’’). Such Division shall be under the direct supervision and control of the Direc- tor of the Office. (b) Functions In consultation with the tribal governing bod- ies and tribal school boards, the Director of the Office, through the Division, shall conduct stud- ies, surveys, or other activities to gather demo- graphic information on Bureau-funded schools and project the amount necessary to provide In- dian students in such schools the educational program set forth in this chapter. (c) Annual reports Not later than the date on which the Assistant Secretary for Indian Affairs makes the annual budget submission, for each fiscal year after January 8, 2002, the Director of the Office shall submit to the appropriate committees of Con- gress (including the Appropriations commit- tees), all Bureau-funded schools, and the tribal governing bodies of such schools, a report that contains— (1) projections, based upon the information gathered pursuant to subsection (b) and any other relevant information, of amounts nec- essary to provide Indian students in Bureau- funded schools the educational program set forth in this chapter; (2) a description of the methods and for- mulas used to calculate the amounts projected pursuant to paragraph (1); and (3) such other information as the Director of the Office considers appropriate. (d) Use of reports The Director of the Office and the Assistant Secretary for Indian Affairs shall use the annual report required by subsection (c) when preparing annual budget submissions. (Pub. L. 95–561, title XI, § 1129, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2038.) Editorial Notes PRIOR PROVISIONS A prior section 2009, Pub. L. 95–561, title XI, § 1129, as added Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3998, related to Division of Budget Analysis, prior to the general amendment of this chapter by Pub. L. 107–110. Another prior section 2009, Pub. L. 95–561, title XI, § 1129, Nov. 1, 1978, 92 Stat. 2321; Pub. L. 98–511, title V, §§ 506, 507(a), Oct. 19, 1984, 98 Stat. 2395, 2396; Pub. L. 99–89, § 6, Aug. 15, 1985, 99 Stat. 382; Pub. L. 99–570, title IV, § 4133(b)(4), Oct. 27, 1986, 100 Stat. 3207–134; Pub. L. 100–297, title V, §§ 5109, 5110, 5118, Apr. 28, 1988, 102 Stat. 375, 376, 382; Pub. L. 100–427, §§ 6, 9(d), Sept. 9, 1988, 102 Stat. 1605, 1607, related to uniform direct funding and support, prior to the general amendment of this chap- ter by Pub. L. 103–382.