§ 2005. — Facilities construction.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 25USC2005]
TITLE 25--INDIANS
CHAPTER 22--BUREAU OF INDIAN AFFAIRS PROGRAMS
Sec. 2005. Facilities construction
(a) National survey of facilities conditions
(1) In general
Not later than 12 months after January 8, 2002, the General
Accounting 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 General Accounting 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
facilities.
(B) Data related to conditions of Bureau-funded schools that
has previously been compiled, collected, or secured from
whatever source derived so long as the data are accurate,
relevant, timely, and necessary to the survey.
(C) The methodologies of the American Institute 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
General Accounting Office shall, to the maximum extent
practicable, consult (and if necessary contract) with national,
regional, and tribal Indian 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 General Accounting Office and
shall respond to such requests in a timely fashion.
(4) Submission
Not later than 2 years after January 8, 2002, the General
Accounting Office shall submit the results of the national survey
conducted under paragraph (1) to the Committee on Indian Affairs,
the Committee on Health, Education, Labor, and Pensions, and the
Committee on Appropriations of the Senate and the Committee on
Resources, the Committee on Education and the Workforce, and the
Committee on Appropriations of the House of Representatives and to
the Secretary. The Secretary 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 paragraph (4), the Secretary shall
establish a negotiated rulemaking committee pursuant to section
2018(b)(3) of this title. The negotiated 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 General
Accounting Office study evaluating and comparing school
systems 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 educational
facilities that do not exist but that are needed; and
(V) makes projections on the amount of funds needed
to keep each school viable, consistent with the
accreditation standards required pursuant to this Act.
(ii) A school replacement and new construction report
that determines replacement 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 equitable
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 determines
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 renovations 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
necessary 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 negotiated rulemaking
committee is established under subparagraph (A), the reports
described in clauses (ii) and (iii) of subparagraph (A) shall be
submitted to the committees 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 Information Systems
Support Database to maintain and update the information contained in
the reports under clauses (ii) and (iii) of paragraph (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 General Accounting 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 Indian 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 provides greater protection (except
that the tribal standards to be applied shall be no greater than
any otherwise applicable Federal 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 termination 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
committees of Congress a detailed plan to bring all facilities covered
under subsection (a) of this section into compliance with the standards
referred to in that subsection that includes--
(1) detailed information on the status of each facility's
compliance with such standards;
(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 submit to the
appropriate committees of Congress and cause to be published in the
Federal Register, the system used to establish priorities for
replacement and construction projects for Bureau-funded schools and
home-living schools, including boarding schools and dormitories. At
the time any budget request for 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 subsection (c) of this
section, 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 subparagraph (A), propose
a list for the orderly replacement of all Bureau-funded
education-related facilities over a period of 40 years to enable
planning and scheduling of budget requests;
(C) cause the list prepared under subparagraph (B) to be
published in the Federal Register and allow a period of not less
than 120 days for public comment;
(D) make such revisions to the list prepared under
subparagraph (B) as are appropriate 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 priority list as it existed on the day before
January 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
curtailed, 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) determine 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 safety purposes with respect to
occupancy; or
(iii) have a significant educational background in the
health and safety of facilities 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 determine whether
conditions at such facility constitute an immediate hazard to
health and safety. Such inspection shall be completed 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, conducting the inspection of a facility
required under subparagraph (C) do not concur that conditions at
the facility constitute an immediate hazard to health and
safety, such officer and individual shall immediately notify the
tribal governing body and provide written information related to
their determinations.
(E) Consideration by tribal governing body
Not later than 10 days after a tribal governing body
receives notice under subparagraph (D), the tribal governing
body shall consider all information relating to the
determinations of the Bureau health and safety officer and the
individual designated by the tribe and make a determination
regarding the closure, consolidation, or curtailment involved.
(F) Agreement to close, consolidate, or curtail
(i) In general
If the Bureau health and safety officer and the
individual designated by the tribe conducting the inspection
of a facility required under subparagraph (C), concur that
conditions at the facility constitute an immediate hazard to
health and safety, or if the tribal governing body makes
such a determination under subparagraph (E), the facility
involved shall be closed immediately.
(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 conducting the inspection
of a facility required under subparagraph (C) determines
that conditions at the facility do not constitute 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 substantially curtailed under this subsection and
the Secretary determines that the closure, consolidation, or
curtailment will exceed 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 curtailment was initiated,
a report that specifies--
(i) the reasons for such temporary action;
(ii) the actions the Secretary is taking to eliminate
the conditions that constitute the hazard;
(iii) an estimated date by which the actions described
in clause (ii) will be concluded; and
(iv) a plan for providing alternate education 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
relating to such facilities (such as the required number of exit
lights or configuration of restrooms) so long as such waivers do
not result in the creation of an environment that constitutes an
immediate and substantial threat to the health, safety, and life
of students and staff.
(B) Administrative activities
The provisions of subparagraph (A) shall apply with respect
to administrative personnel 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 period determined appropriate
by the Bureau.
(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 improvement and
repair project.
(4) Use of funds
With respect to a Bureau-funded school that is closed under this
subsection, the tribal governing body, or the designated local
school board of each Bureau-funded school, involved may authorize
the use of funds allocated pursuant 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 following 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 administrative 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 distribution to the budget
of any school operated under contract or grant by the Bureau for
maintenance or any other facilities or road-related purpose, unless
such school has consented, 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 provided. The
school may, at the end of any fiscal year, cancel an agreement under
this paragraph 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
construction from a State or any other source.
(Pub. L. 95-561, title XI, Sec. 1125, as added Pub. L. 107-110, title X,
Sec. 1042, Jan. 8, 2002, 115 Stat. 2021.)
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, as amended, known as the Education
Amendments of 1978. For complete classification 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 (Sec. 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 section 12101
of Title 42 and Tables.
Prior Provisions
A prior section 2005, Pub. L. 95-561, title XI, Sec. 1125, as added
Pub. L. 103-382, title III, Sec. 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, Sec. 1125,
Nov. 1, 1978, 92 Stat. 2319; Pub. L. 100-297, title V, Sec. 5103, Apr.
28, 1988, 102 Stat. 364, related to facilities construction, prior to
the general amendment of this chapter by Pub. L. 103-382.
Use of Tribal Priority Allocations Funds for School Facilities
Pub. L. 105-277, div. A, Sec. 101(e) [title I], Oct. 21, 1998, 112
Stat. 2681-231, 2681-246, provided in part: ``That hereafter 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''.
Section Referred to in Other Sections
This section is referred to in sections 2006, 2503 of this title.
