25 U.S.C. § 2005 — Facilities construction

Page 405 TITLE 25—INDIANS § 2005 The Secretary shall accept such proposed al- ternative or revised boundaries unless the Sec- retary finds, after consultation with the af- fected tribe or tribes, that such revised bound- aries do not reflect the needs of the Indian students to be served or do not provide ade- quate stability to all of the affected programs. The Secretary shall cause such revisions to be published in the Federal Register. (3) Tribal resolution determination Nothing in this section shall deny a tribal governing body the authority, on a continuing basis, to adopt a tribal resolution allowing parents the choice of the Bureau-funded school their children may attend, regardless of the attendance boundaries established under this section. (d) Funding restrictions (1) In general The Secretary shall not deny funding to a Bureau-funded school for any eligible Indian student attending the school solely because that student’s home or domicile is outside of the geographical attendance area established for that school under this section. (2) Transportation No funding shall be made available without tribal authorization to enable a school to pro- vide transportation for any student to or from the school and a location outside the approved attendance area of the school. (e) Reservation as boundary When there is only one Bureau-funded pro- gram located on an Indian reservation— (1) the attendance area for the program shall be the boundaries (established by treaty, agreement, legislation, court decisions, or ex- ecutive decisions and as accepted by the tribe) of the reservation served; and (2) those students residing near the reserva- tion shall also receive services from such pro- gram. (f) Off-reservation home-living (dormitory) schools (1) In general Notwithstanding any geographical attend- ance areas, attendance at off-reservation home-living (dormitory) schools shall include students requiring special emphasis programs to be implemented at each off-reservation home-living (dormitory) school. (2) Coordination Such attendance shall be coordinated be- tween education line officers, the family, and the referring and receiving programs. (Pub. L. 95–561, title XI, § 1124, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2019.) Editorial Notes PRIOR PROVISIONS A prior section 2004, Pub. L. 95–561, title XI, § 1124, as added Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3986, related to school boundaries, prior to the general amendment of this chapter by Pub. L. 107–110. Another prior section 2004, Pub. L. 95–561, title XI, § 1124, Nov. 1, 1978, 92 Stat. 2319; Pub. L. 98–511, title V, § 503, Oct. 19, 1984, 98 Stat. 2393; Pub. L. 99–89, § 3, Aug. 15, 1985, 99 Stat. 380; Pub. L. 100–297, title V, § 5120, Apr. 28, 1988, 102 Stat. 384, related to school boundaries, 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. § 2005. Facilities construction (a) National survey of facilities conditions (1) In general Not later than 12 months after January 8, 2002, the Government Accountability Office shall compile, collect, and secure the data that are needed to prepare a national survey of the physical conditions of all Bureau-funded school facilities. (2) Data and methodologies In preparing the national survey required under paragraph (1), the Government Account- ability Office shall use the following data and methodologies: (A) The existing Department of Defense formula for determining the condition and adequacy of Department of Defense facili- ties. (B) Data related to conditions of Bureau- funded schools that has previously been compiled, collected, or secured from what- ever source derived so long as the data are accurate, relevant, timely, and necessary to the survey. (C) The methodologies of the American In- stitute of Architects, or other accredited and reputable architecture or engineering associations. (3) Consultations (A) In general In carrying out the survey required under paragraph (1), the Government Account- ability Office shall, to the maximum extent practicable, consult (and if necessary con- tract) with national, regional, and tribal In- dian education organizations to ensure that a complete and accurate national survey is achieved. (B) Requests for information All Bureau-funded schools shall comply with reasonable requests for information by the Government Accountability Office and shall respond to such requests in a timely fashion. (4) Submission Not later than 2 years after January 8, 2002, the Government Accountability Office shall submit the results of the national survey con- ducted under paragraph (1) to the Committee on Indian Affairs, the Committee on Health, Education, Labor, and Pensions, and the Com- mittee on Appropriations of the Senate and the Committee on Resources, the Committee on Education and the Workforce, and the Com- Page 406 TITLE 25—INDIANS § 2005 mittee on Appropriations of the House of Rep- resentatives and to the Secretary. The Sec- retary shall submit the results of the national survey to school boards of Bureau-funded schools and their respective tribes. (5) Negotiated rulemaking committee (A) In general Not later than 6 months after the date on which the submission is made under para- graph (4), the Secretary shall establish a ne- gotiated rulemaking committee pursuant to section 2018(b)(3) of this title. The nego- tiated rulemaking committee shall prepare and submit to the Secretary the following: (i) A catalog of the condition of school facilities at all Bureau-funded schools that— (I) incorporates the findings from the Government Accountability Office study evaluating and comparing school sys- tems of the Department of Defense and the Bureau of Indian Affairs; (II) rates such facilities with respect to the rate of deterioration and useful life of structures and major systems; (III) establishes a routine maintenance schedule for each facility; (IV) identifies the complementary edu- cational facilities that do not exist but that are needed; and (V) makes projections on the amount of funds needed to keep each school via- ble, consistent with the accreditation standards required pursuant to this Act. (ii) A school replacement and new con- struction report that determines replace- ment and new construction need, and a formula for the equitable distribution of funds to address such need, for Bureau- funded schools. Such formula shall utilize necessary factors in determining an equi- table distribution of funds, including— (I) the size of school; (II) school enrollment; (III) the age of the school; (IV) the condition of the school; (V) environmental factors at the school; and (VI) school isolation. (iii) A renovation repairs report that de- termines renovation need (major and minor), and a formula for the equitable distribution of funds to address such need, for Bureau-funded schools. Such report shall identify needed repairs or renova- tions with respect to a facility, or a part of a facility, or the grounds of the facility, to remedy a need based on disabilities access or health and safety changes to a facility. The formula developed shall utilize nec- essary factors in determining an equitable distribution of funds, including the factors described in clause (ii). (B) Submission of reports Not later than 24 months after the nego- tiated rulemaking committee is established under subparagraph (A), the reports de- scribed in clauses (ii) and (iii) of subpara- graph (A) shall be submitted to the commit- tees of Congress referred to in paragraph (4), the national and regional Indian education organizations, and to all school boards of Bureau-funded schools and their respective tribes. (6) Facilities information systems support database The Secretary shall develop a Facilities In- formation Systems Support Database to main- tain and update the information contained in the reports under clauses (ii) and (iii) of para- graph (5)(A) and the information contained in the survey conducted under paragraph (1). The system shall be updated every 3 years by the Bureau of Indian Affairs and monitored by Government Accountability Office, and shall be made available to school boards of Bureau- funded schools and their respective tribes, and Congress. (b) Compliance with health and safety standards (1) In general The Secretary shall immediately begin to bring all schools, dormitories, and other In- dian education-related facilities operated by the Bureau or under contract or grant with the Bureau, into compliance with— (A) all applicable tribal, Federal, or State health and safety standards, whichever pro- vides greater protection (except that the tribal standards to be applied shall be no greater than any otherwise applicable Fed- eral or State standards); (B) section 794 of title 29; and (C) the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.]. (2) No termination required Nothing in this subsection requires termi- nation of the operations of any facility that— (A) does not comply with the provisions and standards described in paragraph (1); and (B) is in use on January 8, 2002. (c) Compliance plan At the time that the annual budget request for Bureau educational services is presented, the Secretary shall submit to the appropriate com- mittees of Congress a detailed plan to bring all facilities covered under subsection (a) into com- pliance with the standards referred to in that subsection that includes— (1) detailed information on the status of each facility’s compliance with such stand- ards; (2) specific cost estimates for meeting such standards at each school; and (3) specific timelines for bringing each school into compliance with such standards. (d) Construction priorities (1) System to establish priorities On an annual basis, the Secretary shall sub- mit to the appropriate committees of Congress and cause to be published in the Federal Reg- ister, the system used to establish priorities for replacement and construction projects for Bureau-funded schools and home-living schools, including boarding schools and dor- mitories. At the time any budget request for Page 407 TITLE 25—INDIANS § 2005 education is presented, the Secretary shall publish in the Federal Register and submit with the budget request the current list of all Bureau-funded school construction priorities. (2) Long-term construction and replacement list In addition to the plan submitted under sub- section (c), the Secretary shall— (A) not later than 18 months after January 8, 2002, establish a long-term construction and replacement list for all Bureau-funded schools; (B) using the list prepared under subpara- graph (A), propose a list for the orderly re- placement of all Bureau-funded education- related facilities over a period of 40 years to enable planning and scheduling of budget re- quests; (C) cause the list prepared under subpara- graph (B) to be published in the Federal Reg- ister and allow a period of not less than 120 days for public comment; (D) make such revisions to the list pre- pared under subparagraph (B) as are appro- priate based on the comments received; and (E) cause the final list to be published in the Federal Register. (3) Effect on other list Nothing in this section shall interfere with or change in any way the construction pri- ority list as it existed on the day before Janu- ary 8, 2002. (e) Hazardous condition at Bureau-funded school (1) Closure, consolidation, or curtailment (A) In general A Bureau-funded school may be closed or consolidated, or the programs of a Bureau- funded school may be substantially cur- tailed, by reason of facility conditions that constitute an immediate hazard to health and safety only if a health and safety officer of the Bureau and an individual designated at the beginning of the school year by the tribe involved under subparagraph (B) deter- mine that such conditions exist at a facility of the Bureau-funded school. (B) Designation of individual by tribe To be designated by a tribe for purposes of subparagraph (A), an individual shall— (i) be a licensed or certified facilities safety inspector; (ii) have demonstrated experience in the inspection of facilities for health and safe- ty purposes with respect to occupancy; or (iii) have a significant educational back- ground in the health and safety of facili- ties with respect to occupancy. (C) Inspection After making a determination described in subparagraph (A), the Bureau health and safety officer and the individual designated by the tribe shall conduct an inspection of the conditions of such facility in order to de- termine whether conditions at such facility constitute an immediate hazard to health and safety. Such inspection shall be com- pleted as expeditiously as practicable, but not later than 20 days after the date on which the action described in subparagraph (A) is taken. (D) Failure to concur If the Bureau health and safety officer, and the individual designated by the tribe, con- ducting the inspection of a facility required under subparagraph (C) do not concur that conditions at the facility constitute an im- mediate hazard to health and safety, such of- ficer and individual shall immediately no- tify the tribal governing body and provide written information related to their deter- minations. (E) Consideration by tribal governing body Not later than 10 days after a tribal gov- erning body receives notice under subpara- graph (D), the tribal governing body shall consider all information relating to the de- terminations of the Bureau health and safe- ty officer and the individual designated by the tribe and make a determination regard- ing the closure, consolidation, or curtail- ment involved. (F) Agreement to close, consolidate, or cur- tail (i) In general If the Bureau health and safety officer and the individual designated by the tribe conducting the inspection of a facility re- quired under subparagraph (C), concur that conditions at the facility constitute an im- mediate hazard to health and safety, or if the tribal governing body makes such a de- termination under subparagraph (E), the facility involved shall be closed imme- diately. (ii) Reopening of facility if no immediate hazard found to exist If the Bureau health and safety officer or the individual designated by the tribe con- ducting the inspection of a facility re- quired under subparagraph (C) determines that conditions at the facility do not con- stitute an immediate hazard to health and safety, any consolidation or curtailment that was made under this paragraph shall immediately cease and any school closed by reason of conditions at the facility shall be reopened immediately. (G) General closure report If a Bureau-funded school is temporarily closed or consolidated or the programs of a Bureau-funded school are temporarily sub- stantially curtailed under this subsection and the Secretary determines that the clo- sure, consolidation, or curtailment will ex- ceed 1 year, the Secretary shall submit to the appropriate committees of Congress, the affected tribe, and the local school board, not later than 90 days after the date on which the closure, consolidation, or curtail- ment was initiated, a report that specifies— (i) the reasons for such temporary ac- tion; (ii) the actions the Secretary is taking to eliminate the conditions that con- stitute the hazard; Page 408 TITLE 25—INDIANS § 2005 (iii) an estimated date by which the ac- tions described in clause (ii) will be con- cluded; and (iv) a plan for providing alternate edu- cation services for students enrolled at the school that is to be closed. (2) Nonapplication of certain standards for temporary facility use (A) Classroom activities The Secretary shall permit the local school board to temporarily utilize facilities adjacent to the school, or satellite facilities, if such facilities are suitable for conducting classroom activities. In permitting the use of facilities under the preceding sentence, the Secretary may waive applicable minor standards under section 2001 of this title re- lating to such facilities (such as the required number of exit lights or configuration of restrooms) so long as such waivers do not re- sult in the creation of an environment that constitutes an immediate and substantial threat to the health, safety, and life of stu- dents and staff. (B) Administrative activities The provisions of subparagraph (A) shall apply with respect to administrative per- sonnel if the facilities involved are suitable for activities performed by such personnel. (C) Temporary In this paragraph, the term ‘‘temporary’’ means— (i) with respect to a school that is to be closed for not more than 1 year, 3 months or less; and (ii) with respect to a school that is to be closed for not less than 1 year, a time pe- riod determined appropriate by the Bu- reau. (3) Treatment of closure Any closure of a Bureau-funded school under this subsection for a period that exceeds 30 days but is less than 1 year, shall be treated by the Bureau as an emergency facility improve- ment and repair project. (4) Use of funds With respect to a Bureau-funded school that is closed under this subsection, the tribal gov- erning body, or the designated local school board of each Bureau-funded school, involved may authorize the use of funds allocated pur- suant to section 2007 of this title, to abate the hazardous conditions without further action by Congress. (f) Funding requirement (1) Distribution of funds Beginning with the first fiscal year fol- lowing January 8, 2002, all funds appropriated to the budget accounts for the operations and maintenance of Bureau-funded schools shall be distributed by formula to the schools. No funds from these accounts may be retained or segregated by the Bureau to pay for adminis- trative or other costs of any facilities branch or office, at any level of the Bureau. (2) Requirements for certain uses No funds shall be withheld from the distribu- tion to the budget of any school operated under contract or grant by the Bureau for maintenance or any other facilities or road-re- lated purpose, unless such school has con- sented, as a modification to the contract or in writing for grants schools, to the withholding of such funds, including the amount thereof, the purpose for which the funds will be used, and the timeline for the services to be pro- vided. The school may, at the end of any fiscal year, cancel an agreement under this para- graph upon giving the Bureau 30 days notice of its intent to do so. (g) No reduction in Federal funding Nothing in this section shall diminish any Federal funding due to the receipt by the school of funding for facilities improvement or con- struction from a State or any other source. (Pub. L. 95–561, title XI, § 1125, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2021; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (a)(5)(A)(i)(V), means Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2143, known as the Education Amendments of 1978. For complete classi- fication of this Act to the Code, see Short Title of 1978 Amendment note set out under section 6301 of Title 20, Education, and Tables. The Americans with Disabilities Act of 1990, referred to in subsec. (b)(1)(C), is Pub. L. 101–336, July 26, 1990, 104 Stat. 327, as amended which is classified principally to chapter 126 (§ 12101 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 12101 of Title 42 and Tables. PRIOR PROVISIONS A prior section 2005, Pub. L. 95–561, title XI, § 1125, as added Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3986, related to facilities construction, prior to the general amendment of this chapter by Pub. L. 107–110. Another prior section 2005, Pub. L. 95–561, title XI, § 1125, Nov. 1, 1978, 92 Stat. 2319; Pub. L. 100–297, title V, § 5103, Apr. 28, 1988, 102 Stat. 364, related to facilities construction, prior to the general amendment of this chapter by Pub. L. 103–382. AMENDMENTS 2004—Subsec. (a). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’ wherever appearing. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hun- dred Tenth Congress, Jan. 5, 2007. 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. USE OF TRIBAL PRIORITY ALLOCATIONS FUNDS FOR SCHOOL FACILITIES Pub. L. 105–277, div. A, § 101(e) [title I], Oct. 21, 1998, 112 Stat. 2681–231, 2681–246, provided in part: ‘‘That here- Page 409 TITLE 25—INDIANS § 2006 after tribes may use tribal priority allocations funds for the replacement and repair of school facilities in compliance with [former] 25 U.S.C. 2005(a) [see now 25 U.S.C. 2005(b)], so long as such replacement or repair is approved by the Secretary and completed with non- Federal tribal and/or tribal priority allocation funds’’. § 2006. Bureau of Indian Affairs education func- tions (a) Formulation and establishment of policy and procedure; supervision of programs and ex- penditures The Secretary shall vest in the Assistant Sec- retary for Indian Affairs all functions with re- spect to formulation and establishment of policy and procedure and supervision of programs and expenditures of Federal funds for the purpose of Indian education administered by the Bureau. The Assistant Secretary shall carry out such functions through the Director of the Office of Indian Education Programs. (b) Direction and supervision of personnel oper- ations (1) In general Not later than 180 days after January 8, 2002, the Director of the Office shall direct and su- pervise the operations of all personnel directly and substantially involved in the provision of education program services by the Bureau, in- cluding school or institution custodial or maintenance personnel, and personnel respon- sible for contracting, procurement, and fi- nance functions connected with school oper- ation programs. (2) Transfers The Assistant Secretary for Indian Affairs shall, not later than 180 days after January 8, 2002, coordinate the transfer of functions re- lating to procurements for, contracts of, oper- ation of, and maintenance of schools and other support functions to the Director. (c) Inherent Federal function For purposes of this Act, all functions relating to education that are located at the Area or Agency level and performed by an education line officer shall be subject to contract under the In- dian Self-Determination and Education Assist- ance Act [25 U.S.C. 5301 et seq.], unless deter- mined by the Secretary to be inherently Federal functions as defined in section 2021(12) of this title. (d) Evaluation of programs; services and support functions; technical and coordinating assist- ance Education personnel who are under the direc- tion and supervision of the Director of the Office of Indian Education Programs in accordance with subsection (b)(1) shall— (1) monitor and evaluate Bureau education programs; (2) provide all services and support functions for education programs with respect to per- sonnel matters involving staffing actions and functions; and (3) provide technical and coordinating assist- ance in areas such as procurement, con- tracting, budgeting, personnel, curriculum, and operation and maintenance of school fa- cilities. (e) Construction, improvement, operation, and maintenance of facilities (1) Plan for construction The Assistant Secretary shall submit as part of the annual budget a plan— (A) for school facilities to be constructed under section 2005(c) of this title; (B) for establishing priorities among projects and for the improvement and repair of educational facilities, which together shall form the basis for the distribution of appropriated funds; and (C) for capital improvements to be made over the 5 succeeding years. (2) Program for operation and maintenance (A) Establishment The Assistant Secretary shall establish a program, including the distribution of ap- propriated funds, for the operation and maintenance of education facilities. Such program shall include— (i) a method of computing the amount necessary for each educational facility; (ii) similar treatment of all Bureau-fund- ed schools; (iii) a notice of an allocation of appro- priated funds from the Director of the Of- fice of Indian Education Programs directly to the education line officers and appro- priate school officials; (iv) a method for determining the need for, and priority of, facilities repair and maintenance projects, both major and minor (to be determined, through the con- duct by the Assistant Secretary, of a series of meetings at the agency and area level with representatives of the Bureau-funded schools in those areas and agencies to re- ceive comment on the lists and prioritization of such projects); and (v) a system for the conduct of routine preventive maintenance. (B) Local supervisors The appropriate education line officers shall make arrangements for the mainte- nance of education facilities with the local supervisors of the Bureau maintenance per- sonnel. The local supervisors of Bureau maintenance personnel shall take appro- priate action to implement the decisions made by the appropriate education line offi- cers, except that no funds under this chapter may be authorized for expenditure unless such appropriate education line officer is as- sured that the necessary maintenance has been, or will be, provided in a reasonable manner. (3) Implementation This subsection shall be implemented as soon as practicable after January 8, 2002. (f) Acceptance of gifts and bequests (1) Guidelines Notwithstanding any other provision of law, the Director of the Office shall promulgate guidelines for the establishment and adminis- tration of mechanisms for the acceptance of gifts and bequests for the use and benefit of