[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Proposed Rules]
[Pages 40218-40226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14665]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 48

[Docket ID: BIA-2014-0007/167 A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF14


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: Proposed rule.

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SUMMARY: Congress authorized the Director of the Bureau of Indian 
Education (BIE) 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 proposed 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.

DATES: Please submit written comments by August 22, 2016. See the 
SUPPLEMENTARY INFORMATION section of this notice for dates of Tribal 
consultation sessions.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:

--Federal rulemaking portal: http://www.regulations.gov. The proposed 
rule is listed under the agency name ``Bureau of Indian Affairs'' and 
has been assigned Docket ID: BIA-2014-0007. If you would like to submit 
comments through the Federal e-Rulemaking Portal, go to 
www.regulations.gov and follow the instructions.
--Email: [email protected]. Include the number 1076-AF14 in the 
subject line of the message.

[[Page 40219]]

--Mail or hand-delivery: Elizabeth Appel, Office of Regulatory Affairs 
& Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW., MS 3642, Washington, DC 20240. Include the number 1076-AF14 on the 
envelope. Please note, email or www.regulations.gov are the preferred 
methods for submitting comments; there is no need to submit a hard copy 
if you have submitted the comments through either of these electronic 
methods.
    Comments on the Paperwork Reduction Act information collections 
contained in this rule are separate from comments on the substance of 
the rule. Submit comments on the information collection requirements in 
this rule to the Desk Officer for the Department of the Interior by 
email at [email protected] or by facsimile at (202) 395-5806. 
Please also send a copy of your comments to [email protected].
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Vicki Forrest, Deputy Director for 
School Operations, Bureau of Indian Education, (202) 208-6123.

SUPPLEMENTARY INFORMATION:

I. Background
II. Summary of Proposed Rule
III. Tribal Consultation
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)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Background

    Public Laws 112-74 and 113-235 authorize 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 
is to determine the manner in which the consideration will be used to 
benefit the school, as long as they are for school purposes otherwise 
authorized by law. Congress provided that any funds under this section 
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.
    These public laws also allow 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 Acts require the 
Secretary of the Interior to promulgate regulations. The Acts provide 
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 
consideration received, the manner in which the consideration is used, 
and any results achieved by such use.

II. Summary of Proposed Rule

    This rule would establish a new Code of Federal Regulations (CFR) 
part to implement the leasing and fundraising authority that Congress 
granted to BIA under Public Laws 112-74 and 113-235. The leasing 
provisions of this rule would apply only to facilities and land 
operated by the BIE. This proposed rule would not apply to public 
schools, Public Law 100-297 Tribally controlled grant schools, or 
Public Law 93-638 contract schools. This rule would implement statutory 
leasing authority specific to leasing of Bureau-operated facilities and 
land and be 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. 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 proposed 
rule would apply only to employees of schools operated by the BIE.
    Subpart A of the proposed rule would set forth the purpose, 
definitions, and other general provisions applicable to both leasing 
and fundraising.
    Subpart B would establish the mechanisms and standards by which the 
Bureau may lease Bureau-operated school facilities and land to third 
parties. The proposed rule allows only the BIE Director or his or her 
designee to enter into leases and sets forth the standards the BIE 
Director (or designee) will use to determine whether to enter into a 
lease, including that the lease provides a net financial benefit to the 
school, that it meets certain standards (e.g., complies with the 
mission of the school, conforms to principles of good order and 
discipline), and ensures the lease does not compromise the safety and 
security of students and staff or damage facilities. 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. 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. It establishes how the Director will 
determine what amount is proper for lease consideration, and 
establishes the mechanics for lessees to pay consideration and how the 
Bureau will process the funds. Bureau-operated school personnel would 
be required to report quarterly on any active leases to the Director 
and others, including an accounting of all expenditures and supporting 
documentation showing expenditures were made for school purposes.
    Subpart C of the proposed rule addresses fundraising activities by 
Bureau personnel on behalf of Bureau-operated schools. (Nothing in this 
proposed rule affects fundraising activities by students.) This subpart 
allows authorized personnel to spend a reasonable portion of his or her 
official duties fundraising, and allows unlimited fundraising in a 
personal capacity when not on duty. 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 would be required before personnel may 
accept a donation on behalf of a school, and each Bureau-operated 
school that has received donations would be required to report 
quarterly to the Director and others,

[[Page 40220]]

including an accounting of all expenditures and supporting 
documentation showing expenditures were made for school purposes.

III. Tribal Consultation

    The Department is hosting a listening session on the proposed rule 
at 3 p.m. (local time) on Monday, June 27, 2016 in Spokane, Washington, 
in conjunction with the National Congress of American Indians mid-year 
conference.
    The Department will also be hosting the following consultation 
sessions on this proposed rule:

------------------------------------------------------------------------
             Date                      Time               Location
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Monday, July 25, 2016.........  2 p.m. ET-4 p.m.   Teleconference: Call-
                                 ET.                In Number (877) 924-
                                                    1752; passcode
                                                    1484699.
Friday, July 29, 2016.........  2 p.m. ET-4 p.m.   Teleconference: Call-
                                 ET.                In Number (877) 324-
                                                    8525; passcode
                                                    7359354.
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IV. 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 would not have a significant economic effect on them. 
Small entities would rent the facilities only if the fees charged are 
reasonable.

C. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This proposed 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 proposed 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 proposed 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 proposed 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 
proposed 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 proposed 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 
proposed 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 
proposed rule because it provides for consideration for the leasing of 
Bureau-operated schools and fundraising standards for school employees. 
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 received no comments on the draft rule, but has scheduled 
consultation sessions with Tribal officials on this proposed rule. (See 
Section III of this preamble for details on the dates and locations of 
the Tribal consultation sessions).

I. Paperwork Reduction Act

    This proposed rule contains information collections that require 
approval by OMB. The Department is seeking approval of a new 
information collection and a revision to an existing regulation, as 
follows.
    OMB Control Number: 1076-NEW.
    Title: Use of Bureau-Operated Schools by Third Parties.
    Brief Description of Collection: The Bureau of Indian Education 
(BIE) is proposing to establish 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;

[[Page 40221]]

the assurance of ethical conduct; and monitoring the amount and terms 
of consideration received, the manner in which the consideration is 
used, and any results achieved by such use. The paperwork burden 
associated with the proposed rule results from lease provisions; lease 
violations; and assignments, subleases, or mortgages of leases.
    Type of Review: New collection.
    Respondents: Individuals and Private Sector.
    Number of Respondents: 24.
    Number of Responses: 24.
    Frequency of Response: Annually.
    Estimated Time per Response: One to three hours.
    Estimated Total Annual Hour Burden: 68 hours.
    Estimated Total Annual Non-Hour Cost Burden: $0.

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                                                                                              Number          Annual       Burden  hours   Total annual
                    CFR Cite                                   Description                  respondents      responses     per  response   burden hours
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48.105, 48.106.................................  Provisions of leases and the                         17              17               3              51
                                                  construction of permanent improvements
                                                  under the lease (businesses).
48.105, 48.106.................................  Provisions of leases and the                          3               3               3               9
                                                  construction of permanent improvements
                                                  under the lease.
                                                 (individuals)..........................
48.116.........................................  Violations of leases (businesses)......               1               1               1               1
48.116.........................................  Violations of leases (individuals).....               1               1               1               1
48.118.........................................  Assignments, subleases, and mortgages                 1               1               3               3
                                                  of leases (businesses).
48.118.........................................  Assignments, subleases, and mortgages                 1               1               3               3
                                                  of leases (individuals).
                                                --------------------------------------------------------------------------------------------------------
                                                 Total..................................              24              24  ..............              68
--------------------------------------------------------------------------------------------------------------------------------------------------------

    OMB Control Number: 1090-0009.
    Title: Donor Certification Form.
    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. 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.

J. National Environmental Policy Act

    This proposed 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 
proposed 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 proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:

    a. Be logically organized;
    b. Use the active voice to address readers directly;
    c. Use clear language rather than jargon;
    d. Be divided into short sections and sentences; and
    e. Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 48

    Educational facilities, Indians--education.

    For the reasons given in the preamble, the Department of the 
Interior proposes to amend 25 CFR chapter I, subchapter E, to add part 
48 to read as follows:

PART 48--LEASES COVERING 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 terms do I need to know?
48.4 What is considered unethical conduct in the context of this 
part?
48.5 What accounting standards will the Bureau use in monitoring the 
receipt, holding, and use of funds?
48.6 How long will the funds be available?
48.7 How does the Paperwork Reduction Act affect this part?
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?

[[Page 40222]]

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 will the Bureau monitor the results achieved by the use 
of funds received from leases?
48.115 Who may investigate compliance with a lease?
48.116 What will the Bureau do about a violation of a lease?
48.117 What will the Bureau do if a lessee does not cure a lease 
violation on time?
48.118 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?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9; Pub. L. 112-74; Pub. L. 
113-235.

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 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) 26 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 BIE 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 
operated by the BIE and the fundraising provisions of this part apply 
only to employees of schools operated by the BIE. 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 terms do I need to know?

    Assistant Secretary means the Assistant Secretary--Indian Affairs 
or his or her designee.
    Bureau means the Bureau of Indian Education.
    Bureau official means the official in charge of administrative 
functions for the Bureau under this part.
    Bureau-operated school means a day or boarding school, or a 
dormitory for students attending a school other than a Bureau school, 
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.
    Designee means a supervisory contracting specialist the Director 
designates to act on his or her behalf.
    Director means the Director, Bureau of Indian Education.
    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 with or 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 where facilities are being 
leased under this Part.
    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.


Sec.  48.4  What is considered unethical conduct in the context of this 
part?

    Violation or the appearance of violation of any applicable ethics 
statute or regulation by an employee may be considered unethical 
conduct.


Sec.  48.5  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.

[[Page 40223]]

Sec.  48.6  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.


Sec.  48.7  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 a 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 a net financial benefit to the school and that the 
Head of the School 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 facilities must identify:
    (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 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 Indian 
landowners for liability or cost arising from the Indian landowners' 
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.
    (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

[[Page 40224]]

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.
    (d) The due diligence requirements of this section do not apply to 
leases for religious, educational, recreational, cultural, or other 
public purposes.


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) 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. 
The funds must first be sent to the Bureau official as provided for in 
the subject lease for processing in accordance with Sec.  48.112.


Sec.  48.110  For what purposes may a Bureau-operated school use the 
funds?

    The Bureau-operated school must first use the funds to pay for 
indirect and direct costs of the lease. The Bureau-operated school must 
use the remaining funds for any 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-operated school 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 official must deposit funds received as lease 
consideration or late payment charge into the Treasury account set up 
to receive the proceeds from the Bureau-operated school's lease.


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) We 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:

------------------------------------------------------------------------
         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 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 a quarterly 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.  48.115  Who may investigate compliance with a lease?

    The Head of the School or his designee or any Bureau official 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.  48.116  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.


Sec.  48.117  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, 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

[[Page 40225]]

requested, within 5 business days of our 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 under part 2 
of this chapter, 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 to us under 
the lease, including collecting on any available performance bond.


Sec.  48.118  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 under the direction and 
supervision of the Director 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, or 
in a personal capacity, so long as:
    (1) The Bureau official 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?

    (a) Each authorized employee may spend no more than a reasonable 
portion of his or her official duties as an employee in any calendar 
year fundraising.
    (b) There is no limit to the time employees may spend fundraising 
in a personal capacity when not on duty, as long as other requirements 
of this subpart are met.


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 ethical statutes or regulations.
    (c) Fundraising and donations 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 reprimand, 
condemnation, nor criticism shall be made of, nor any retaliatory 
action 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?

    (a) Prior to accepting a donation, the Bureau official 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.
    (b) Prior to accepting a donation that consists of volunteer 
services, the Bureau official must approve the acceptance and certify 
that it complies with this subpart, including the considerations of 
Sec.  48.205, 25 CFR 38.14, Departmental policy, and any applicable 
statute or regulation.


Sec.  48.207  How may donations solicited under this subpart be used?

    (a) The Bureau official must deposit all income from the 
fundraising into the Treasury account set up to receive the proceeds 
from the fundraising activities authorized under this part. 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.
    (c) Each Bureau-operated school that has received donations must 
submit a quarterly report to the Director containing the following 
information:
    (1) A list of donors, donation amounts, and estimated values of 
donated goods and services;

[[Page 40226]]

    (2) An accounting of all costs of fundraising activities;
    (3) Supporting documentation showing the donations were used for 
school purposes; and
    (4) A report of the results achieved by use of donations.

    Dated: June 15, 2016.
Lawrence S. Roberts,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2016-14665 Filed 6-20-16; 8:45 am]
 BILLING CODE 4337-15-P