Rule2021-13196
Use of Bureau-Operated Schools by Third Parties Under Lease Agreements and Fundraising Activity by Bureau-Operated School Personnel
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2021
Effective
August 2, 2021
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
Congress authorized the Director of the Bureau of Indian Education (BIE or Bureau) to enter into agreements with third parties to lease the land or facilities of a Bureau-operated school in exchange for funding that benefits the school. This final rule establishes standards for the appropriate use of lands and facilities under a lease agreement, provisions for establishment and administration of mechanisms for the acceptance of consideration for the use and benefit of a school, accountability standards to ensure ethical conduct, and provisions for monitoring the amount and terms of consideration received, the manner in which the consideration is used, and any results achieved by such use. This final rule also establishes standards to implement authority provided by Congress for BIE personnel to fundraise on behalf of Bureau-operated schools.
Full Text
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<title>Federal Register, Volume 86 Issue 124 (Thursday, July 1, 2021)</title>
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[Federal Register Volume 86, Number 124 (Thursday, July 1, 2021)]
[Rules and Regulations]
[Pages 34943-34952]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13196]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 48
[212A2100DD; AAKC001030; A0A501010.999900]
RIN 1076-AF55
Use of Bureau-Operated Schools by Third Parties Under Lease
Agreements and Fundraising Activity by Bureau-Operated School Personnel
AGENCY: Bureau of Indian Education, Interior.
ACTION: Final rule.
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SUMMARY: Congress authorized the Director of the Bureau of Indian
Education (BIE or Bureau) to enter into agreements with third parties
to lease the land or facilities of a Bureau-operated school in exchange
for funding that benefits the school. This final rule establishes
standards for the appropriate use of lands and facilities under a lease
agreement, provisions for establishment and administration of
mechanisms for the acceptance of consideration for the use and benefit
of a school, accountability standards to ensure ethical conduct, and
provisions for monitoring the amount and terms of consideration
received, the manner in which the consideration is used, and any
results achieved by such use. This final rule also establishes
standards to implement authority provided by Congress for BIE personnel
to fundraise on behalf of Bureau-operated schools.
DATES: This rule takes effect on August 2, 2021.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
<a href="/cdn-cgi/l/email-protection#c3a6afaab9a2a1a6b7abeda2b3b3a6af83a1aaa2eda4acb5"><span class="__cf_email__" data-cfemail="20454c495a41424554480e415050454c604249410e474f56">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Rule
III. Responses to Comments and Changes From Proposed Rule
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
I. Background
Public Law 112-74, as amended by Public Law 113-235 and Public Law
114-113, authorizes the Director of BIE, or the Director's designee, to
enter into agreements with public and private persons and entities
allowing them to lease the land or facilities of a Bureau-operated
school in exchange for consideration (in the form of funds) that
benefits the school. The head of the school determines the manner in
which the consideration will be used to benefit the school, as long as
the use is for school purposes otherwise authorized by law. Congress
provided that any funds obtained under this authority will not affect
or diminish appropriations for the operation and maintenance of Bureau-
operated schools, and that no funds will be withheld from distribution
to the budget of a school due to receipt of such funds.
This public law also allows personnel of Bureau-operated schools to
participate in fundraising activity for the benefit of a Bureau-
operated school in their official capacity, as part of their official
duties.
To carry out these public law provisions, the Act requires the
Secretary of the Interior to promulgate regulations. The Act provides
that the regulations must include standards for the appropriate use of
Bureau-operated school lands and facilities by third parties under a
rental or lease agreement; provisions for the establishment and
administration of mechanisms for the acceptance of consideration for
the use and benefit of a school; accountability standards to ensure
ethical conduct; and provisions for monitoring the amount and terms of
[[Page 34944]]
consideration received, the manner in which the consideration is used,
and any results achieved by such use.
The BIE published a proposed rule on October 14, 2020 (85 FR 65000)
and received four comments, which are discussed later in this preamble.
II. Summary of Rule
This rule establishes a new Code of Federal Regulations (CFR) part
to implement the leasing and fundraising authority that Congress
granted to BIE under Public Law 112-74, as amended by Public Law 113-
235 and Public Law 114-113. The leasing provisions of this rule apply
only to the facilities and land of Bureau-operated schools. This rule
does not apply to public schools, Public Law 100-297 Tribally
controlled grant schools, or Public Law 93-638 contract schools. This
rule implements statutory leasing authority specific to leasing of
Bureau-operated school facilities and land and is separate from the
general statutory authority for leasing. To obtain approval of a lease
of a Bureau-operated facility or land, one would need to comply with
this new regulation, rather than the more generally applicable
regulations at 25 CFR part 162. While the regulations at part 162 allow
the granting of permits for use of Government land, the primary purpose
of part 162 is to promote leasing of Indian land for housing, economic
development, and other purposes. In contrast, the purpose of these new
regulations at part 48 is to lease or rent Bureau-operated school
facilities in exchange for consideration that will be used for school
purposes. We note that nothing in this rule affects 25 CFR 31.2, which
allows for use of Bureau-operated school facilities or land for
community activities and adult education activities upon approval by
the superintendent or officer-in-charge, where no consideration is
received in exchange for the use of the facilities. The fundraising
provisions of this rule apply only to employees of schools operated by
the BIE. Subpart A of the rule sets forth the purpose, definitions, and
other general provisions applicable to both leasing and fundraising.
Subpart B establishes the mechanisms and standards by which the
Bureau may lease Bureau-operated school facilities and land to third
parties. The statutory authority for the rule's leasing sections
provides that the BIE Director or the Director's designee is authorized
to enter into agreements with public and private persons and entities
that provide for such persons and entities to rent or lease the land or
facilities of a Bureau-operated school in exchange for a consideration
(in the form of funds) that benefits the school, as determined by the
head of the school. Public Law 112-74, section 115(a)(1). The rule
allows only the BIE Director or his or her designee to enter into
leases, and defines the Director's designee to be the Associate Deputy
Director--Bureau-Operated Schools or the Associate Deputy Director--
Navajo Schools. While most lease negotiations will occur at the school
level, having someone at the Associate Deputy Director level make the
ultimate determination whether to enter into a lease provides an
appropriate level of oversight. The rule is written to provide a basic
framework for leasing of Bureau-operated school facilities without
being overly prescriptive so that it can accommodate a wide range of
leasing circumstances--everything from leasing out a school gymnasium
for a few hours to entering into a commercial lease of Bureau-operated
school facility land to a billboard company. Accordingly, the rule sets
forth the standards the BIE Director (or designee) will use to
determine whether to enter into a lease. A primary standard for
determining whether to enter into a lease is that the lease provides a
net financial benefit to the school because the statutory authority for
this regulation is centered on BIE receiving consideration in the form
of funds that benefit the school. The BIE Director (or designee) will
also consider including lease terms to incorporate the standards listed
in Sec. 48.104. This subpart also establishes what provisions a lease
must include, what actions are necessary if permanent improvements are
to be constructed under the lease, and how the Bureau will ensure
compliance with the lease. In accordance with the limited authority
provided by the statute, this subpart provides that the Bureau may only
accept funds (as opposed to in-kind consideration) as consideration for
a lease and may only use the funds for school purposes. The rule also
broadly establishes how the Director or his or her designee will
determine what amount is proper for lease consideration. While fair
market value is a consideration, a formal appraisal may not be needed
in all circumstances (e.g., leasing out the school gym for a few hours)
so the rule does not require a formal appraisal. The rule also
establishes the mechanics for lessees to pay consideration and
describes how the Bureau will process the funds. The rule provides the
same late payment fees as are provided in the part 162 provisions for
leasing Indian land. For oversight purposes, the rule requires Bureau-
operated school personnel to report annually on any active lease to the
Director and others, and include an accounting of all expenditures and
supporting documentation showing expenditures were made for school
purposes.
Subpart C of the rule addresses fundraising activities by employees
of Bureau-operated schools in their official capacity on behalf of
those schools. (Nothing in this rule affects fundraising activities by
students). The statutory authority for the rule's fundraising sections
allows BIE personnel to participate in a fundraising activity for the
benefit of a Bureau-operated school in an official capacity as part of
their official duties, and using the employee's official title,
position, and authority. This subpart of the rule allows authorized
personnel to spend a ``reasonable portion'' of his or her official duty
time fundraising. BIE uses the phrase ``reasonable portion'' rather
than specifying a number of hours or percentage of duty time to provide
flexibility for different work schedules and fundraising activities
while ensuring that school personnel are still fulfilling their work
duties. The Director, Director's designee, or Head of School would
determine what constitutes a reasonable portion when they review the
proposed fundraising activity under Sec. 48.202 to certify that it
complies with regulatory requirements. In accordance with the statute's
requirement for the regulations to establish standards to ensure
ethical conduct, this subpart limits the types of fundraising an
employee may conduct to ensure fundraising maintains the school's
integrity, the Bureau's impartiality, and public confidence in the
school. Certain approvals are required before personnel may accept a
donation on behalf of a school as a mechanism for acceptance of the use
of funds and a check to ensure standards are being upheld. In
accordance with the statute's requirement that fundraising activity
benefit a Bureau-operated school, each Bureau-operated school that
receives donations is required to report annually to the Director and
others, including an accounting of all expenditures and supporting
documentation showing expenditures were made for school purposes.
III. Responses to Comments
BIE received four written comment submissions on the proposed rule,
some of which contained more than one comment. A summary of each of the
issues raised in the comments and BIE's responses follow:
[[Page 34945]]
Comment: No taxpayer dollars should be used for religious purposes
unless the religion is a traditional Native American religion.
Response: Funds received under Part 48 are not taxpayer funds. The
funds received come from leases and donations and can be used for
school purposes as defined in Sec. 48.3, which do not include
sectarian purposes. It is the policy for the BIE Director, pursuant to
25 CFR 32.4(f), to promote and respect the right to cultural practices
and religious freedom for all students, consistent with Tribal and
Alaska Native entities' wishes and with the provisions of the American
Indian Religious Freedom Act.
Comment: The requirements in Subpart B are vague because they don't
list the detailed requirements that each possible lessee must have to
obtain a lease.
Response: The rule lists the detailed requirements for the lease at
Sec. 48.105.
Comment: The rule should establish specific guidelines regarding
how the funds are to be used to benefit the school or there will be
confusion and misuse of funds.
Response: The rule defines the ``school purposes'' for which the
funds may be used. See Sec. Sec. 48.3 (definition of ``school
purposes''), 48.110 (regarding use of funds received through leasing),
and 48.204 (regarding use of funds received through fundraising).
Comment: This rule should incorporate other types of schools such
as Tribal schools that are underfunded in locations where students may
not have the opportunity to attend a Bureau school.
Response: The statutory authority for this rule extends only to
BIE-operated schools.
Comment: We are in favor of this rule because of the magnitude of
BIE-operated schools' need for funds and that any funding received
through leasing and fundraising will not affect or diminish
appropriations. Since the intent of the rule is to increase the amount
of funds at BIE-schools' disposal in order to improve educational
outcomes for students, it would be regrettable if this rule eventually
precipitated the opposite and resulted in a loss of funding for these
schools.
Response: Congress provided that nothing in the statute authorizing
leasing of and fundraising by Bureau-operated schools diminishes or
otherwise affects the appropriation of funds to the budget accounts for
operation and maintenance of Bureau-operated schools. Congress further
provided that no funds may be withheld from distribution to the budget
of any Bureau-operated school due to the school's receipt of funds from
leasing or fundraising.
Comment: The stipulation that the rule does not affect 25 CFR 31.2,
which allows BIE facilities to be used for adult education and
community activities without the requirement of consideration,
mitigates concerns that the rule may be detrimental to the community,
as both adult education activities and communities provide positive
outcomes, particularly in communities facing higher poverty rates, such
as those in which BIE-operated schools are located.
Response: The final rule includes the stipulation that this
commenter supports.
Comment: The requirement in section 48.205(f) that participation in
fundraising must be voluntary is important not just for teachers, but
also students, community members and organizations, to ensure they are
not punished or retaliated against for not participating in a
fundraiser, or for participating in an ``unsuccessful'' fundraiser.
Response: The final rule includes the requirement that this
commenter supports.
Comment: A major advantage to this rule is that it improves these
schools' access to much-needed funds without having to increase
government spending or divert government funding from other important
purposes. Although BIE schools receive more funding per pupil than the
average U.S. public school, the financial need for this rule is still
evident due to the unique challenges and higher costs such schools
face. The funding schools can obtain from fundraising would help make
necessary improvements to the quality of education for all its
students; however, the GAO, in its 2014 report, specified concerns
regarding BIE schools' ability to manage funds efficiently and
ethically and, in 2017, added BIE to its High Risk List for agencies
and programs vulnerable to mismanagement. A prudent solution would be
to resolve existing issues to prevent poor stewardship of taxpayer
dollars. Ideally, BIE would first demonstrate an improved ability to
handle its finances before entrusting BIE schools with additional
funds.
Response: The rule provides that the schools must report on the use
of funds received through leasing (see Sec. 48.115) and fundraising
(Sec. 48.208).
Comment: The condition at section 48.206 requiring donations equal
to or exceeding $5,000 be approved by the Director's designee could
cause school administrators to discourage donations exceeding this
threshold in order to minimize bureaucratic approvals, or misrepresent
the true dollar amount of the donation while ``pocketing'' amounts in
excess of the threshold.
Response: Criminal statutes prohibit employees from ``pocketing''
funds.
Comment: Listing $5,000 as a threshold will eventually produce
considerably different results over time due to inflation; instead, add
a stipulation that the exact dollar amount is to be equivalent of the
real value as of 2021. There are free, fast, user-friendly inflation
calculators on the internet that would assist in adjusting the value
based on inflation in successive years.
Response: BIE will reevaluate this monetary threshold after it
obtains experience in implementing this regulation.
Comment: The rule's requirement at section 48.104 that the Director
must determine that any proposed leases must not interfere with school
activities or compromise school safety should be supported by a
reporting mechanism between the impacted school's faculty, staff, and
students and the Director in case an interference occurs during the
lease term. Those individuals witness the day-to-day operations of the
school and will identify whether a lease results in unanticipated
negative effects on schooling. There should be a procedure to allow
them to file complaints with the Director so the Director fully
understands the effects of the actual implementation of a given lease
and can take appropriate actions as needed.
Response: The Head of the School, in consultation with the school
board or board of regents, certifies that the lease will not interfere
with existing or planned school activities prior to the Director
entering into the lease. Each individual lease will have provisions
specific to the activities that the lessee will conduct under the lease
to ensure that lease activities will not interfere with school
activities. Failure to comply with lease terms would be addressable
under Sec. Sec. 48.116 and 48.117.
Comment: It seems that Native American children with
exceptionalities are or may be denied the protections of the
Rehabilitation Act of 1973 and other laws that empower them to achieve
education-related goals. Many living on reservations are trapped in
poverty, inadequate housing, alcoholism, drug abuse, and exceptionally
high levels of unemployment, and children living on the reservation
have two options: obtain an education to end the vicious cycle or
remain trapped. Without the opportunity to obtain an education
[[Page 34946]]
because you are, by default, excluded from the classroom because of
your exceptionality. It is imperative that children attending public
schools on Indian reservations be granted the opportunity to obtain an
education, regardless of whether they have an exceptionality.
Response: This comment is not directly relevant to this rulemaking,
but BIE has considered it in its implementation of Section 504 of the
Rehabilitation Act of 1973.
IV. Changes to Proposed Rule
The final rule makes three changes to the proposed rule for clarity
and to better define BIE officials' roles and responsibilities:
<bullet> Revises the definition of ``Director's designee'' to mean
only the Associate Deputy Director (deleting the ``Education Program
Administrator'');
<bullet> Adds in Sec. 48.202 that the Head of the School, in
addition to the Director or Director's designee, is one of the
individuals authorized to approve fundraising in advance; and
<bullet> Separates out the discussion of how a Bureau-operated
school processes donated funds from Sec. 48.207, regarding how
donations may be used, to a new Sec. 48.208.
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
It does not change current funding requirements and any economic
effects on small entities would be fees charged for the use of the
facilities, which must be tied to either fair market value or the costs
to the Bureau of the lease and would not have a significant economic
effect on the small entities.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in Executive Order 13175 and have identified substantial direct effects
on federally recognized Indian Tribes that will result from this
rulemaking. The Department acknowledges that Tribes with children
attending Bureau-operated schools have an interest in this rule because
it provides for consideration for the leasing of Bureau-operated
schools and fundraising standards for employees of Bureau-operated
schools. As such, the Department engaged Tribal government
representatives by distributing a letter, dated June 19, 2014, with a
copy of the draft rule and requesting comment on the draft rule by July
31, 2014. The Department also published a proposed rule on June 21,
2016 (81 FR 40218) and hosted a listening session and two
teleconference consultations on the rule, but received no substantive
comments. The Department hosted an additional consultation November 13,
2020, but received no substantive comments.
I. Paperwork Reduction Act
This rule contains new information collections. All information
collections require approval under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
The Department is seeking approval of a new information collection, as
follows.
Brief Description of Collection: The Bureau of Indian Education
(BIE) is establishing standards for the appropriate use of lands and
facilities by third parties. These standards address the following: The
execution of lease agreements; the establishment and administration of
mechanisms for the acceptance of consideration for the use and benefit
of a Bureau-operated school; the assurance of ethical conduct; and
monitoring the amount and terms of
[[Page 34947]]
consideration received, the manner in which the consideration is used,
and any results achieved by such use. The paperwork burden associated
with the rule results from lease provisions; lease violations; and
assignments, subleases, or mortgages of leases.
Title: Use of Bureau-Operated Schools by Third Parties.
OMB Control Number: 1076-0187.
Form Number: None.
Type of Review: New collection.
Respondents/Affected Public: Individuals and Private Sector.
Total Estimated Number of Annual Respondents: 17.
Total Estimated Number of Annual Responses: 24.
Estimated Completion Time per Response: One to three hours.
Total Estimated Number of Annual Burden Hours: 68 hours.
Respondents' Obligation: Required to obtain a benefit.
Frequency of Response: Annually.
Total Estimated Annual Non-Hour Burden Cost: $0.
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Annual Burden hours Total annual
CFR cite Description Number respondents responses per response burden hours
----------------------------------------------------------------------------------------------------------------
48.105.............. Provisions of leases 10................. 10 3 30
(businesses).
48.105.............. Provisions of leases 2.................. 2 3 6
(individuals).
48.105.............. Provisions of leases 5.................. 5 3 15
(governments).
48.106.............. Covered improvements 2 (subset)......... 2 3 6
under lease
(businesses).
48.106.............. Covered improvements 1 (subset)......... 1 3 3
under lease
(governments).
48.117.............. Violations of leases 1 (subset)......... 1 1 1
(businesses).
48.117.............. Violations of leases 1 (subset)......... 1 1 1
(individuals).
48.119.............. Assignments, 1 (subset)......... 1 3 3
subleases, and
mortgages of leases
(businesses).
48.119.............. Assignments, 1 (subset)......... 1 3 3
subleases, and
mortgages of leases
(individuals).
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Total........... ..................... 17................. 24 N/A 68
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OMB Control Number: 1090-0009.
Title: Donor Certification Form (DI-3680).
Brief Description of Collection: This information will provide
Department staff with the basis for beginning the evaluation as to
whether the Department will accept the proposed donation. The
authorized employee will receive the donor certification form in
advance of accepting the proposed donation where the donation is valued
at $25,000 or more. The employee will then review the totality of
circumstances surrounding the proposed donation to determine whether
the Department can accept the donation and maintain its integrity,
impartiality, and public confidence. We expect to receive 25 responses
to this information collection annually. The burden associated with
this information collection is already reflected in the approval of OMB
Control Number 1090-0009.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Written comments and recommendations for the information collection
should be sent within 30 days of publication of this notice to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to <a href="/cdn-cgi/l/email-protection#73101c1d00061f0712071a1c1d33111a125d141c05"><span class="__cf_email__" data-cfemail="bcdfd3d2cfc9d0c8ddc8d5d3d2fcded5dd92dbd3ca">[email protected]</span></a>. Please reference OMB
Control Number 1076-0187 in the subject line of your comments.''
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the environmental effects of this rule are too
speculative to lend themselves to meaningful analysis and will later be
subject to the NEPA process, unless covered by a categorical exclusion.
(For further information see 43 CFR 46.210(i)). We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
List of Subjects in 25 CFR Part 48
Educational facilities, Indians-education.
0
For the reasons given in the preamble, the Department of the Interior
amends 25 CFR chapter 1, subchapter E, by adding part 48 to read as
follows:
PART 48--LEASES OF LAND OR FACILITIES OF BUREAU-OPERATED SCHOOLS
AND FUNDRAISING ACTIVITIES AT BUREAU-OPERATED SCHOOLS
Subpart A--General Provisions
Sec.
48.1 What is the purpose of this part?
48.2 What is the scope of this part?
48.3 What definitions apply to terms in this part?
48.4 What accounting standards will the Bureau use in monitoring the
receipt, holding, and use of funds?
48.5 How does the Paperwork Reduction Act affect this part?
[[Page 34948]]
Subpart B--Leasing of Bureau-operated Facilities
48.101 Who may enter into a lease on behalf of a Bureau-operated
school?
48.102 With whom may the Director enter into a lease?
48.103 What facilities may be leased?
48.104 What standards will the Director use in determining whether
to enter into a lease?
48.105 What provisions must a lease contain?
48.106 May a lessee construct permanent improvements under a lease?
48.107 What consideration may a Bureau-operated school accept in
exchange for a lease?
48.108 How will the Bureau determine appropriate consideration for a
lease?
48.109 Who may use the funds?
48.110 For what purposes may a Bureau-operated school use the funds?
48.111 How does a lessee pay the Bureau-operated school under a
lease?
48.112 How are lease payments processed?
48.113 Will late payment charges or special fees apply to delinquent
lease payments?
48.114 How long will the funds be available?
48.115 How will the Bureau monitor the results achieved by the use
of funds received from leases?
48.116 Who may investigate compliance with a lease?
48.117 What will the Bureau do about a violation of a lease?
48.118 What will the Bureau do if a lessee does not cure a lease
violation on time?
48.119 May a lease be assigned, subleased, or mortgaged?
Subpart C--Fundraising Activities
48.201 To whom does this subpart apply?
48.202 May employees fundraise?
48.203 How much time may employees spend fundraising?
48.204 For what school purposes may employees fundraise?
48.205 What are the limitations on fundraising?
48.206 What approvals are necessary to accept a donation?
48.207 How may the donations solicited under this subpart be used?
48.208 How does a Bureau-operated school process donated funds?
48.209 How must the Bureau-operated school report donations?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9; Pub. L. 112-74; Pub.
L. 113-235; Pub. L. 114-113.
Subpart A--General Provisions
Sec. 48.1 What is the purpose of this part?
(a) The purpose of this part is to set forth processes and
procedures to:
(1) Implement authorization for the Director or his or her designee
to lease or rent Bureau-operated school facilities in exchange for
consideration in the form of funds;
(2) Establish mechanisms and standards for leasing or renting of
Bureau-operated facilities, and management and use of the funds
received as consideration;
(3) Describe allowable fundraising activities by the employees of
Bureau-operated schools;
(4) Set accountability standards to ensure ethical conduct; and
(5) Establish provisions for monitoring the amount and terms of
consideration received, the manner in which the consideration is used,
and any results achieved by such use.
(b) Nothing in this part affects:
(1) 25 CFR 31.2, allowing for use of Federal Indian school
facilities for community activities and adult education activities upon
approval by the superintendent or officer-in-charge, where no
consideration is received in exchange for the use of the facilities;
(2) 25 CFR 31.7 and 36.43(g), establishing guidelines for student
fundraising; or
(3) The implementing regulations for the Federal Employees Quarters
Facilities Act, 5 U.S.C. 5911, at 41 CFR part 114-51 and policies at
Departmental Manual part 400, chapter 3; or
(4) The use of Bureau-operated school facilities or lands by other
Federal agencies so long as the use is memorialized in a written
agreement between the Bureau and the other Federal agency.
Sec. 48.2 What is the scope of this part?
The leasing provisions of this part apply only to facilities of
schools operated by the Bureau and the fundraising provisions of this
part apply only to employees of schools operated by the Bureau. This
part does not apply to public schools, Public Law 100-297 Tribally
controlled schools, or Public Law 93-638 contract or grant schools.
Sec. 48.3 What definitions apply to terms in this part?
Assistant Secretary means the Assistant Secretary--Indian Affairs
or his or her designee.
Bureau means the Bureau of Indian Education.
Bureau-operated school means a day or boarding school, a dormitory
for students attending a school other than a Bureau school, or an
institution of higher learning and associated facilities operated by
the Bureau. This term does not include public schools, Public Law 100-
297 Tribally controlled schools, or Public Law 93-638 contract or grant
schools.
Construction means construction of new facilities, modification, or
alteration of existing grounds or building structures.
Days means calendar days unless otherwise specified.
Director means the Director, Bureau of Indian Education.
Director's designee or designee means the Associate Deputy
Director--Navajo Schools or Associate Deputy Director--Bureau-Operated
Schools.
Department means the Department of the Interior.
Donation means something of value (e.g., funds, land, personal
property) received from a non-Federal source without consideration or
an exchange of value.
Employee means an employee of the Bureau working at a Bureau-
operated school.
Facilities means land or facilities authorized for use by a Bureau-
operated school.
Funds means money.
Fundraising means requesting donations, selling items, or providing
a service, activity, or event to raise funds, except that writing a
grant proposal to secure resources to support school purposes is not
fundraising. Fundraising does not include requests for donated
supplies, materials, in-kind services, or funds (e.g., fees for school
activities) that schools traditionally require or request parents and
guardians of students to provide.
Head of the School means the Principal, President, School
Supervisor, Residential Life Director, Superintendent of the School, or
equivalent head of a Bureau-operated school.
Lease means a written contract or rental agreement executed in
accordance with this part, granting the possession and use of
facilities at a Bureau-operated school to a private or public person or
entity in return for funds.
Private person or entity means an individual who is not acting on
behalf of a public person or entity and includes, but is not limited
to, private companies, nonprofit organizations and any other entity not
included in the definition of public person or entity.
Public person or entity means a State, local, Federal, or Tribal
governmental agency or unit thereof.
School purposes means lawful activities and purchases for the
benefit of students and school operations including, but not limited
to: Academic, residential, and extra-curricular programs during or
outside of the normal school day and year; books, supplies or equipment
for school use; building construction, maintenance and/or operations;
landscape construction, modifications, or maintenance on the school
grounds.
[[Page 34949]]
Sec. 48.4 What accounting standards will the Bureau use in
monitoring the receipt, holding, and use of funds?
The Bureau will use applicable Federal financial accounting rules
in monitoring the receipt, holding, and use of funds.
Sec. 48.5 How does the Paperwork Reduction Act affect this part?
The collections of information in this part have been approved by
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned OMB Control Number 1076-NEW and OMB Control Number 1090-0009.
Response is required to obtain a benefit. A Federal agency may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
Control Number.
Subpart B--Leasing of Bureau-operated Facilities
Sec. 48.101 Who may enter into a lease on behalf of a Bureau-
operated school?
Only the Director or the Director's designee may enter into leases.
Sec. 48.102 With whom may the Director enter into a lease?
The Director or designee may lease to public or private persons or
entities who meet the requirements of this part that are applicable to
leasing activities.
Sec. 48.103 What facilities may be leased?
Any portion of a Bureau-operated school facility may be leased as
long as the lease does not interfere with the normal operations of the
Bureau-operated school, student body, or staff, and otherwise meets
applicable requirements of this part.
Sec. 48.104 What standards will the Director use in determining
whether to enter into a lease?
(a) The Director or designee will make the final decision regarding
approval of a proposed lease. The Director or designee must ensure that
the lease provides appropriate consideration that benefits the school
and that the Head of the School where facilities are being leased has
certified, after consultation with the school board or board of
regents, that the lease meets the standards in paragraph (b) of this
section.
(b) The lease must:
(1) Comply with the mission of the school;
(2) Conform to principles of good order and discipline;
(3) Not interfere with existing or planned school activities or
programs;
(4) Not interfere with school board staff and/or community access
to the school;
(5) Not allow contact or access to students inconsistent with
applicable law;
(6) Not result in any Bureau commitments after the lease expires;
and
(7) Not compromise the safety and security of students and staff or
damage facilities.
(c) The Director's or designee's decision on a proposed lease is
discretionary and is not subject to review or appeal under part 2 of
this chapter or otherwise.
Sec. 48.105 What provisions must a lease contain?
(a) All leases of Bureau-operated school facilities must identify
at a minimum:
(1) The facility, or portion thereof, being leased;
(2) The purpose of the lease and authorized uses of the leased
facility;
(3) The parties to the lease;
(4) The term of the lease, and any renewal term, if applicable;
(5) The ownership of permanent improvements and the responsibility
for constructing, operating, maintaining, and managing permanent
improvements, and meeting due diligence requirements under Sec.
48.106;
(6) Payment requirements and late payment charges, including
interest;
(7) That lessee will maintain insurance sufficient to cover
negligence or intentional misconduct occurring on the leasehold; and
(8) Any bonding requirements, as required in the discretion of the
Director. If a performance bond is required, the lease must state that
the lessee must obtain the consent of the surety for any legal
instrument that directly affects their obligations and liabilities.
(b) All leases of Bureau-operated facilities must include, at a
minimum, the following provisions:
(1) There must not be any unlawful conduct, creation of a nuisance,
illegal activity, or negligent use or waste of the leased premises;
(2) The lessee must comply with all applicable laws, ordinances,
rules, regulations, and other legal requirements;
(3) The Bureau has the right, at any reasonable time during the
term of the lease and upon reasonable notice to enter the leased
premises for inspection and to ensure compliance; and
(4) The Bureau may, at its discretion, treat as a lease violation
any failure by the lessee to cooperate with a request to make
appropriate records, reports, or information available for inspection
and duplication.
(c) Unless the lessee would be prohibited by law from doing so, the
lease must also contain the following provisions:
(1) The lessee holds the United States harmless from any loss,
liability, or damages resulting from the lessee's, its invitees', and
licensees' use or occupation of the leased facility; and
(2) The lessee indemnifies the United States against all
liabilities or costs relating to the use, handling, treatment, removal,
storage, transportation, or disposal of hazardous materials, or the
release or discharge of any hazardous material from the leased premises
that occurs during the lease term, regardless of fault with the
exception that the lessee is not required to indemnify the United
States for liability or cost arising from the United States' negligence
or willful misconduct
Sec. 48.106 May a lessee construct permanent improvements under a
lease?
(a) The lessee may construct permanent improvements under a lease
of a Bureau-operated facility only if the lease contains the following
provisions:
(1) A description of the type and location of any permanent
improvements to be constructed by the lessee and a general schedule for
construction of the permanent improvements, including dates for
commencement and completion of construction;
(2) Specification of who owns the permanent improvements the lessee
constructs during the lease term and specifies whether each specific
permanent improvement the lessee constructs will:
(i) Remain on the leased premises, upon the expiration,
cancellation, or termination of the lease, in a condition satisfactory
to the Director, and become the property of the Bureau-operated school;
(ii) Be removed within a time period specified in the lease, at the
lessee's expense, with the leased premises to be restored as closely as
possible to their condition before construction of the permanent
improvements; or
(iii) Be disposed of by other specified means.
(3) Due diligence requirements that require the lessee to complete
construction of any permanent improvements within the schedule
specified in the lease or general schedule of construction, and a
process for changing the schedule by mutual consent of the parties.
[[Page 34950]]
(i) If construction does not occur, or is not expected to be
completed, within the time period specified in the lease, the lessee
must provide the Director with an explanation of good cause as to the
nature of any delay, the anticipated date of construction of
facilities, and evidence of progress toward commencement of
construction.
(ii) Failure of the lessee to comply with the due diligence
requirements of the lease is a violation of the lease and may lead to
cancellation of the lease.
(b) The lessee must prepare the required information and analyses,
including information to facilitate the Bureau's analysis under
applicable environmental and cultural resource requirements.
(c) The Bureau may take appropriate enforcement action to ensure
removal of the permanent improvements and restoration of the premises
at the lessee's expense before or after expiration, termination, or
cancellation of the lease. The Bureau may collect and hold the
performance bond or alternative form of security until removal and
restoration are completed.
Sec. 48.107 What consideration may a Bureau-operated school accept
in exchange for a lease?
A Bureau-operated school may accept only funds as consideration for
a lease.
Sec. 48.108 How will the Bureau determine appropriate consideration
for a lease?
The Bureau will determine what consideration is appropriate for a
lease by considering, at a minimum, the following factors:
(a) Fair market value and the indirect and direct costs of the
lease; and
(b) Whether there will be a net financial benefit to the school.
Sec. 48.109 Who may use the funds?
The Bureau-operated school may use funds, including late payment
charges, received as compensation for leasing that school's facilities.
Sec. 48.110 For what purposes may a Bureau-operated school use the
funds?
The Bureau-operated school must use the funds for school purposes.
Sec. 48.111 How does a lessee pay the Bureau-operated school under a
lease?
A lessee must pay consideration and any late payment charges due
under the lease to the Bureau by certified check, money order, or
electronic funds transfer made out to the Bureau and containing
identifying information as provided for in the lease.
Sec. 48.112 How are lease payments processed?
The Bureau will deposit all funds received as lease consideration
or late payment charge into the designated Treasury account. Once the
Bureau deposits the funds, the Bureau will work with the Bureau-
operated school to make the funds available for school purposes.
Sec. 48.113 Will late payment charges or special fees apply to
delinquent lease payments?
(a) Late payment charges will apply as specified in the lease. The
failure to pay these amounts will be treated as a lease violation.
(b) The Bureau may assess the following special fees to cover
administrative costs incurred by the United States in the collection of
the debt, if rent is not paid in the time and manner required, in
addition to late payment charges that must be paid under the terms of
the lease:
Table 1 to paragraph (b)
------------------------------------------------------------------------
The lessee will pay . . . For . . .
------------------------------------------------------------------------
(1) $50.00............................. Any dishonored check.
(2) $15.00............................. Processing of each notice or
demand letter.
(3) 18 percent of balance due.......... Treasury processing following
referral for collection of
delinquent debt.
------------------------------------------------------------------------
Sec. 48.114 How long will the funds be available?
Funds generated under these regulations remain available to the
recipient school until expended, notwithstanding 31 U.S.C. 3302, in
accordance with the Bureau-operated school's plan for expending the
funds for school purposes.
Sec. 48.115 How will the Bureau monitor the results achieved by the
use of funds received from leases?
The Head of the School for each Bureau-operated school that has
active leases under this part must submit an annual report to the
Director, the designee, and the Office of Facilities Management and
Construction. The report must contain the following information:
(a) A list of leases and the facilities covered by each lease;
(b) An accounting of receipts from each lease;
(c) An accounting of all expenditures and the supporting
documentation showing that expenditures were made for school purposes;
(d) A report of the benefits provided by the leasing program as a
whole;
(e) A certification that the terms of each lease were met or, if
the terms of a lease were not met, the actions taken as a result of the
noncompliance; and
(f) Any unexpected expenses incurred.
Sec. 48.116 Who may investigate compliance with a lease?
The Head of the School or his or her designee or any Bureau
employee may enter the leased facility at any reasonable time, upon
reasonable notice, and consistent with any notice requirements under
the lease to determine if the lessee is in compliance with the
requirements of the lease.
Sec. 48.117 What will the Bureau do about a violation of a lease?
(a) If the Bureau determines there has been a violation of the
conditions of a lease, it will promptly send the lessee and any surety
and mortgagee a notice of violation, by certified mail, return receipt
requested.
(1) The notice of violation will advise the lessee that, within 10
business days of the receipt of a notice of violation, the lessee must:
(i) Cure the violation and notify the Bureau in writing that the
violation has been cured;
(ii) Dispute the determination that a violation has occurred; or
(iii) Request additional time to cure the violation.
(2) The notice of violation may order the lessee to cease
operations under the lease.
(b) A lessee's failure to pay compensation in the time and manner
required by the lease is a violation of the lease, and the Bureau will
issue a notice of violation in accordance with this section requiring
the lessee to provide adequate proof of payment.
(c) The lessee and its sureties will continue to be responsible for
the obligations in the lease until the lease expires, or is terminated
or cancelled.
[[Page 34951]]
Sec. 48.118 What will the Bureau do if a lessee does not cure a
lease violation on time?
(a) If the lessee does not cure a violation of a lease within the
required time period, or provide adequate proof of payment as required
in the notice of violation, the Bureau will take one or more of the
following actions:
(1) Cancel the lease;
(2) Invoke other remedies available under the lease or applicable
law, including collection on any available performance bond or, for
failure to pay compensation, referral of the debt to the Department of
the Treasury for collection; or
(3) Grant the lessee additional time in which to cure the
violation.
(b) The Bureau may take action to recover unpaid compensation and
any associated late payment charges under Sec. 48.113, and does not
have to cancel the lease or give any further notice to the lessee
before taking action to recover unpaid compensation. The Bureau may
still take action to recover any unpaid compensation if it cancels the
lease.
(c) If the Bureau decides to cancel the lease, it will send the
lessee and any surety and mortgagee a cancellation letter by certified
mail, return receipt requested, within 5 business days of its decision.
The cancellation letter will:
(1) Explain the grounds for cancellation;
(2) If applicable, notify the lessee of the amount of any unpaid
compensation or late payment charges due under the lease;
(3) Notify the lessee of the lessee's right to appeal to the
Director if the decision is made by the Director's designee, or to the
Interior Board of Indian Appeals if the decision is made by the
Director, including the possibility that the official to whom the
appeal is made may require the lessee to post an appeal bond;
(4) Order the lessee to vacate the property within 31 days of the
date of receipt of the cancellation letter, if an appeal is not filed
by that time; and
(5) Order the lessee to take any other action the Bureau deems
necessary to protect the facility.
(d) The Bureau may invoke any other remedies available under the
lease, including collecting on any available performance bond.
Sec. 48.119 May a lease be assigned, subleased, or mortgaged?
A lessee may assign, sublease, or mortgage a lease only with the
approval of the Director.
Subpart C--Fundraising Activities
Sec. 48.201 To whom does this subpart apply?
This subpart applies to employees that fundraise for a Bureau-
operated school. This subpart does not apply to students who fundraise.
Sec. 48.202 May employees fundraise?
(a) Employees may fundraise for school purposes as part of their
official duties using their official title, position and authority, so
long as:
(1) The Director or the Director's designee or the Head of the
School approves the fundraising in advance and certifies that it
complies with this subpart; and
(2) The employees ensure the fundraising conforms to the
requirements of this subpart.
(b) Nothing in this part allows participation in political or other
activities prohibited by law.
Sec. 48.203 How much time may employees spend fundraising?
Each authorized employee may spend no more than a reasonable
portion of his or her official duty time as an employee in any calendar
year fundraising.
Sec. 48.204 For what school purposes may employees fundraise?
Employees may fundraise for school purposes as defined in Sec.
48.3.
Sec. 48.205 What are the limitations on fundraising?
(a) Fundraising may not include any gaming or gambling activity.
(b) Fundraising may not violate, or create an appearance of
violating, any applicable ethics statutes or regulations.
(c) Donations from fundraising must maintain the integrity of the
Bureau-operated school programs and operations, including but not
limited to the following considerations:
(1) The donation may not, and may not appear, to be an attempt to
influence the exercise of any regulatory or other authority of the
Bureau;
(2) The donation may not require commitment of current or future
funding that is not planned or available;
(3) The donation must be consistent with, and may not otherwise
circumvent, law, regulation, or policy;
(4) The Bureau-operated school must be able to properly utilize or
manage any donated real or personal property within policy,
programmatic, and management goals;
(5) Any conditions on the donation must be consistent with
authorized school purposes and any relevant policy or planning
documents;
(6) The donation may not be used by the donor to state or imply
endorsement by the Bureau or Bureau-operated school of the donor or the
donor's products or services;
(7) The donation, if it consists of personnel or funding to hire
personnel, must be structured such that the donated or funded personnel
do not inappropriately influence any Bureau regulatory action or other
significant decision.
(d) The fundraising and donation must maintain the impartiality,
and appearance of impartiality, of the Bureau, Bureau-operated school,
and its employees, including but not limited to the following
considerations:
(1) The proposed donation may be only in an amount that would not
influence or appear to influence any pending Bureau decision or action
involving the donor's interests;
(2) There may be no actual or implied commitment to take an action
favorable to the donor in exchange for the donation;
(3) The donor may not obtain or appear to obtain special treatment
dealing with the Bureau or Bureau-operated school.
(e) The fundraising and donation must maintain public confidence in
the Bureau and Bureau-operated school, its programs, and its personnel,
including but not limited to the following considerations:
(1) The fundraising and acceptance of the donation would not likely
result in public controversy;
(2) Any conditions on donations must be consistent with the Bureau
and Bureau-operated school's policy, goals, and programs; and
(3) The fundraising and donation may not involve any inappropriate
goods or services.
(f) Participation in fundraising is voluntary. No student,
community member, or organization shall be forced, coerced or otherwise
unduly pressured to participate in fundraising. No criticism nor any
retaliatory action may be taken against, any student, community member,
or organization for failure to participate or succeed in fundraising.
Sec. 48.206 What approvals are necessary to accept a donation under
this subpart?
Prior to accepting a donation valued at $5,000 or more under this
subpart, the Director's designee must approve the acceptance and
certify that it complies with this subpart, including the
considerations of Sec. 48.205, Departmental policy, and any applicable
statute or regulation.
[[Page 34952]]
Sec. 48.207 How may donations solicited under this subpart be used?
(a) The Bureau-operated school must first use the funds to pay
documented costs of the fundraising activity and must use the remaining
funds in accordance with paragraph (b) of this section.
(b) Funds and in-kind donations solicited under this subpart may be
used for the school purposes identified in the solicitation. If the
solicitation did not identify the school purposes, the funds and in-
kind donations may be used for any school purposes defined in Sec.
48.3 of this part.
Sec. 48.208 How does a Bureau-operated school process donated funds?
The Bureau will deposit all funds received as donations into the
designated Treasury account. Once the Bureau deposits the funds, the
Bureau will work with the Bureau-operated school to make the funds
available for school purposes.
Sec. 48.209 How must the Bureau-operated school report donations?
Each Bureau-operated school that has received donations must submit
an annual report to the Director containing the following information:
(a) A list of donors, donation amounts, and estimated values of
donated goods and services;
(b) An accounting of all costs of fundraising activities;
(c) Supporting documentation showing the donations were used for
school purposes; and
(d) A report of the results achieved by use of donations.
Bryan Newland,
Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 2021-13196 Filed 6-30-21; 8:45 am]
BILLING CODE 4337-15-P
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</html>Indexed from Federal Register on July 1, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.