Page 579 TITLE 25—INDIANS § 2008

(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 remain available to the school for expenditure

without fiscal year limitation. The Assistant

Secretary shall take steps as may be necessary

to implement this provision immediately.

(i) Students boarding at Richfield Dormitory,

Richfield, Utah

Beginning with academic year 1994–1995, tuition for the out-of-State students boarding at

the Richfield Dormitory in Richfield, Utah, who

attend Sevier County high schools in Richfield,

Utah, shall be paid from the Indian school

equalization program funds authorized in this

section and section 2010 of this title at a rate

not to exceed the amount per weighted student

unit for that year for the instruction of such

students. No additional administrative cost

funds shall be added to the grant.

(Pub. L. 95–561, title XI, §1127, as added Pub. L.

103–382, title III, §381, Oct. 20, 1994, 108 Stat.

3989.)

PRIOR PROVISIONS

A 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 administrative

functions, prior to the general amendment of this chapter by Pub. L. 103–382.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2001, 2010, 2019

of this title.

§ 2008. Administrative cost grants

(a) Purpose; effect upon appropriated amounts

(1) The Secretary shall, subject to the availability of appropriated funds, provide grants to

each tribe or tribal organization operating a

contract school or grant school in the amount

determined 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

in order to—

(A) enable tribes and tribal organizations operating such schools, without reducing direct

program services to the beneficiaries of the

program, to provide all related administrative

overhead services and operations necessary to

meet the requirements of law and prudent

management practice, and

(B) carry out other necessary support functions 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 Bureau

operated programs.

(2) Amounts appropriated to fund the grants

provided under this section shall be in addition

to, and shall not reduce, the amounts appropriated for the program being administered by

the contract or grant school.

(b) Determination of amount; reduction for Federal education program payments; reimbursement by Federal departments or agencies

(1) The amount of the grant provided to each

tribe or tribal organization under this section

for each fiscal year shall be determined by applying the administrative cost percentage rate

of the tribe or tribal organization to the aggregate of the Bureau elementary and secondary

functions operated by the tribe or tribal organization for which funds are received from or

through the Bureau. The administrative cost

percentage rate determined under subsection (c)

of this section does not apply to other programs

operated by the tribe or tribal organization.

(2) The Secretary shall—

(A) reduce the amount of the grant determined under paragraph (1) to the extent that

payments for administrative costs are actually received by an Indian tribe or tribal organization under any Federal education program

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.

(c) Administrative cost percentage rate

(1) For purposes of this section, the administrative 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, multiplied 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) The administrative cost percentage rate

shall be determined to the 1

⁄100 of a decimal

point.

(d) Administrative cost account; availability of

funds; effect upon indirect cost recovery determinations

(1)(A) 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 administrative cost

account without the necessity of maintaining

separate funding source accounting.

(B) 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 subparagraph (A).
§ 2008 TITLE 25—INDIANS Page 580

(2) 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 provided.

(3) Funds received as grants under this section

for Bureau funded programs operated by a tribe

or tribal organization under a contract or agreement 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.

(4) In applying this section and section 105 of

the Indian Self-Determination and Education

Assistance Act [25 U.S.C. 450j] with respect to an

Indian tribe or tribal organization that—

(A) receives funds under this section for administrative costs incurred in operating a contract or grant school or a school operated

under the Tribally Controlled Schools Act of

1988 [25 U.S.C. 2501 et seq.], and

(B) operates 1 or more other programs under

a contract or grant provided under the Indian

Self-Determination and Education Assistance

Act [25 U.S.C. 450 et seq.],

the Secretary shall ensure that the Indian tribe

or tribal organization is provided with the full

amount of the administrative costs, and of the

indirect costs, that are associated with operating the contract or grant school, a school operated under the Tribally Controlled Schools Act

of 1988, and 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.

(e) Definitions

For purposes of this section:

(1)(A) The term ‘‘administrative cost’’

means the costs of necessary administrative

functions which—

(i) the tribe or tribal organization incurs

as a result of operating a tribal elementary

or secondary educational program,

(ii) are not customarily paid by comparable 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 selfdetermination program operators by law

or prudent management practice.

(B) The term ‘‘administrative cost’’ may include—

(i) contract or grant (or other agreement)

administration;

(ii) executive, policy, and corporate leadership and decisionmaking;

(iii) program planning, development, and

management;

(iv) fiscal, personnel, property, and procurement management;

(v) related office services and record keeping; and

(vi) costs of necessary insurance, auditing,

legal, safety and security services.

(2) The term ‘‘Bureau elementary and secondary 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 benefit 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 elementary and secondary education functions for

the benefit of Indians, from whatever source

derived.

(3)(A) Except as otherwise provided in this

subparagraph (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 educational 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 operated by the tribe or tribal organization during the 2 preceding fiscal years, the first fiscal year preceding such fiscal year.

(B) In the case of Bureau elementary or secondary education functions which have not

previously been operated by a tribe or tribal

organization under contract, grant, or agreement with the Bureau, the direct cost base for

the initial year shall be the projected aggregate direct cost program funding for all Bureau elementary and secondary functions to be

operated by the tribe or tribal organization

during that fiscal year.

(4) The term ‘‘maximum base rate’’ means 50

percent.

(5) The term ‘‘minimum base rate’’ means 11

percent.

(6) The term ‘‘standard direct cost base’’

means $600,000.

(7) The term ‘‘tribal elementary or secondary educational programs’’ means all Bureau

elementary 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 expended through the Bureau, funds for major subcontracts, construction, 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.

(f) Studies for determination of factors affecting

costs, minimum and maximum base rates,

and standard direct cost base; report to Congress

(1) Upon April 28, 1988, the Secretary shall—

(A) conduct such studies as may be needed to

establish an empirical basis for determining
Page 581 TITLE 25—INDIANS § 2008

relevant factors substantially affecting the required administrative costs of tribal elementary and secondary educational programs,

using the formula set forth in subsection (c) of

this section, 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 administrative

costs of the smallest tribal elementary 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 administrative

costs of the largest tribal elementary 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 (c) of this section 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 educational programs closest

to the size of the program.

(2) The studies required under paragraph (1)

shall—

(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) of this section, and

(ii) all national and regional Indian organizations of which such tribes and tribal organizations are typically members;

(B) be conducted onsite with a representative statistical sample of the tribal elementary or secondary educational programs under

a contract entered into with a nationally reputable public accounting and business 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 education requirements, and any other market factors

found substantially to affect the administrative costs and efficiency of each such tribal

elementary or secondary educational program

studied in order to assure that all required administrative activities can reasonably be delivered in a cost effective 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 percentages of direct program costs, any general

factors arising from geographic isolation, or

numbers of programs administered, independent of program size factors used to compute a

base administrative cost percentage 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 applicability to other such programs, and (if so) how the

factors may effectively be incorporated into

such formula.

(3) In carrying out the studies required under

this subsection, the Secretary shall obtain the

input of, and afford an opportunity to participate to, the Inspector General of the Department of the Interior.

(4) Determinations described in paragraph

(2)(C) shall be based on what is pragmatically

possible to do at each location studied, given

prudent management practice, irrespective of

whether required administrative services were

actually or fully delivered at these sites, or

other services were delivered instead, during the

period of the study.

(5) Upon completion of the studies conducted

under paragraph (1), but in no case later than

October 1, 1989, the Secretary shall submit to

the Congress a report on the findings of the

studies, together with determinations based

upon such findings that would affect the definitions of terms used in the formula that is set

forth in subsection (c) of this section.

(6) The Secretary shall include in the Bureau’s

justification for each appropriations request for

each fiscal year beginning after fiscal year 1989,

a projection of the overall costs associated with

the formula set forth in subsection (c) of this

section for all tribal elementary or secondary

educational programs which the Secretary expects to be funded in the fiscal year for which

the appropriations are sought.

(7) For purposes of this subsection, the size of

tribal elementary or secondary educational programs is determined by the aggregate direct

cost program funding level for all Bureau funded

programs which share common administrative

cost functions.

(g) Authorization of appropriations; procedure

where amount of funds necessary exceeds

appropriated amount

(1) There are authorized to be appropriated for

each fiscal year such sums as may be necessary

to carry out this section.

(2) If the total amount of funds necessary to

provide grants to tribes and tribal organizations

in the amounts determined under subsection (b)

of this section 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 determined

under subsection (b) of this section for such fiscal year by an amount that bears the same relationship to such excess as the amount of such

grant determined under subsection (b) of this

section bears to the total of all grants determined under subsection (b) of this section for all

tribes and tribal organizations for such fiscal

year.

(h) Amounts for fiscal years 1989, 1990, and 1991

(1) Notwithstanding any other provision of

this section, the amount of the grants provided

under this section for fiscal year 1989 shall—
§ 2009 TITLE 25—INDIANS Page 582

(A) in lieu of being determined under subsection (b) of this section, be determined for

each tribal elementary or secondary educational program on the same basis that indirect costs were determined for such programs

for fiscal year 1988, and

(B) be subject to the provisions of subsection

(d) of this section.

(2) Notwithstanding any other provision of

this section, the amount of the grant provided

under this section for fiscal year 1990 with respect to each tribal elementary and secondary

educational program that was operated by a

tribe or tribal organization in fiscal year 1989

shall be equal to—

(A) if the amount of the grant determined

under subsection (b) of this section for fiscal

year 1990 with respect to such program exceeds

the amount received by the tribe or tribal organization with respect to such program for

administrative costs for fiscal year 1988 (or fiscal year 1989 if such program was not operated

by the tribe or tribal organization during fiscal year 1988), the sum of—

(i) such amount received, plus

(ii) 1

⁄3 of the excess of—

(I) such amount determined under subsection (b) of this section, over

(II) such amount received, or

(B) if such amount received exceeds such

amount determined under subsection (b) of

this section, the excess of—

(i) such amount received, over

(ii) an amount equal to 1

⁄3 of the excess of—

(I) such amount received, over

(II) such amount determined under subsection (b) of this section.

(3) Notwithstanding any other provision of

this section, the amount of the grants provided

under this section for fiscal year 1991 with respect to each tribal elementary and secondary

educational program that was operated by a

tribe or tribal organization in fiscal year 1989

shall be equal to—

(A) if the amount of the grant determined

under subsection (b) of this section for fiscal

year 1991 with respect to such program exceeds

the amount received by the tribe or tribal organization with respect to such program for

administrative costs for fiscal year 1990, the

sum of—

(i) such amount received, plus

(ii) 1

⁄2 of the excess of—

(I) such amount determined under subsection (b) of this section, over

(II) such amount received, or

(B) if such amount received exceeds such

amount determined under subsection (b) of

this section, the excess of—

(i) such amount received, over

(ii) an amount equal to 1

⁄2 of the excess of—

(I) such amount received over,

(II) such amount determined under subsection (b) of this section.

(i) Application of section to certain tribally controlled schools

The provisions of this section shall also apply

to those schools operating under the Tribally

Controlled Schools Act of 1988 [25 U.S.C. 2501 et

seq.].

(Pub. L. 95–561, title XI, §1128, as added Pub. L.

103–382, title III, §381, Oct. 20, 1994, 108 Stat.

3993.)

REFERENCES IN TEXT

The Tribally Controlled Schools Act of 1988, referred

to in subsecs. (d)(4) and (i), is part B (§§5201–5212) of

title V of Pub. L. 100–297, Apr. 28, 1988, 102 Stat. 385, as

amended, 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 Assistance Act, referred to in subsec. (d)(4)(B), is Pub. L.

93–638, Jan. 4, 1975, 88 Stat. 2203, as amended, which is

classified principally to part A (§450 et seq.) of subchapter II of chapter 14 of this title. For complete classification of this Act to the Code, see Short Title note

set out under section 450 of this title and Tables.

PRIOR PROVISIONS

Prior sections 2008 and 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 allotment 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.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 458cc, 2019, 2503,

2504, 2511 of this title; title 20 section 1484.

§ 2009. Division of Budget Analysis

(a) Establishment

Within 24 months of October 20, 1994, the Secretary shall establish within the Office a Division of Budget Analysis (hereinafter referred to

as the ‘‘Division’’). Such Division shall be under

the direct supervision and control of the Director of the Office.

(b) Functions

The Division shall have the capacity to conduct such studies, surveys, or other activities as

are necessary to gather demographic information on Bureau-funded schools (current and future) and project the amount necessary to provide Indian students in such schools the educational program set forth in this chapter.

(c) Annual reports

The Division shall prepare projections on such

amounts, along with such other information as

the Director of the Office shall require, for each

fiscal year beginning after October 1, 1996. The

Director of the Office and the Assistant Secretary for Indian Affairs shall use such reports

when preparing their annual budget submissions.

(Pub. L. 95–561, title XI, §1129, as added Pub. L.

103–382, title III, §381, Oct. 20, 1994, 108 Stat.

3998.)