[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Proposed Rules]
[Pages 65000-65008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21536]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 48
[201A2100DD; 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: Proposed 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 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. This proposed rule also establishes
standards to implement authority provided by Congress for BIE personnel
to fundraise on behalf of Bureau-funded schools.
DATES: Please submit written comments by December 14, 2020. If you wish
to comment on the information collection requirements in this proposed
rule, please note that the Office of Management and Budget (OMB) is
required to make a decision concerning the collection of information
contained in this proposed rule between 30 and 60 days after
publication of this proposed rule in the Federal Register. Therefore,
comments should be submitted to OMB by November 13, 2020. See the
SUPPLEMENTARY INFORMATION section of this notice for dates of Tribal
consultation sessions.
ADDRESSES: You may send comments, identified by RIN number 1076-AF55 by
any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
Email: [email protected]. Include RIN number 1076-AF55
in the subject line of the message.
Mail or Hand-Delivery/Courier: Office of Regulatory
Affairs & Collaborative Action--Indian Affairs (RACA), U.S. Department
of the Interior, 1849 C Street NW, Mail Stop 4660, Washington, DC
20240.
All submissions received must include the Regulatory Information
Number (RIN) for this rulemaking (RIN 1076-AF55). All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided.
Comments on the Paperwork Reduction Act information collections
contained in this rule are separate from comments on the substance of
the rule. Send your comments and suggestions on the information
collection requirements to the Desk Officer for the Department of the
Interior at OMB-OIRA at (202) 395-5806 (fax) or
[email protected] (email). Please provide a copy of your
comments to [email protected]. Please reference OMB Control Number
1076-0187 in the subject line of your comments.
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
[[Page 65001]]
will not be included in the docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected].
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 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
consideration received, the manner in which the consideration is used,
and any results achieved by such use.
II. Summary of Proposed Rule
This proposed rule would establish 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 would apply only to the facilities and land of
Bureau-operated schools. 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 proposed rule would implement
statutory leasing authority specific to leasing of Bureau-operated
school 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 or his
designee will determine what amount is proper for lease consideration,
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 annually on any active lease 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
employees of Bureau-operated schools in their official capacity on
behalf of those 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. 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 receives
donations would be 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. Tribal Consultation
The Department is hosting the following consultation session on
this proposed rule:
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Date Time Location
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Friday, November 13, 2020.......... 2 p.m. Eastern Time........ Teleconference number: (888) 972-6716.
Participant Passcode (Operator will answer):
DOI.
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[[Page 65002]]
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 proposed rules. OIRA has
determined that this proposed 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 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 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 will be hosting a consultation session to
discuss this proposed rule (see Section III. Tribal Consultation, of
this preamble for details).
I. Paperwork Reduction Act
This proposed 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 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; 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.
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: 22.
Estimated Completion Time per Response: One to three hours.
Total Estimated Number of Annual Burden Hours: 64 hours.
Respondents' Obligation: Required to obtain a benefit.
Frequency of Response: Annually.
Total Estimated Annual Non-Hour Burden Cost: $0.
[[Page 65003]]
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Annual Burden hours Total annual
CFR cite Description Number respondents responses per response burden hours
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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
48.119.............. Assignments, 1 (subset)......... 1 3 3
subleases, and
mortgages of leases.
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Total........... ..................... 17................. 22 N/A 64
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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 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 proposed information
collection should be sent within 30 days of publication of this notice
to www.reginfo.gov/public/do/PRAMain. 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 [email protected]. Please reference OMB
Control Number 1076-0187 in the subject line of your comments.''
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 proposed rules in
plain language. This means that each proposed 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.
0
For the reasons given in the preamble, the Department of the Interior
proposes to amend 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 65004]]
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 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) 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 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
and/or the Education Program Administrator.
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 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.
[[Page 65005]]
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 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 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.
(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
[[Page 65006]]
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 or 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 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 65007]]
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, 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 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 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 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 65008]]
Sec. 48.207 How may donations solicited under this subpart be used?
(a) The Director's designee must deposit all income from the
fundraising into the 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.
(b) 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 (c) of this section.
(c) 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.
Sec. 48.208 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.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-21536 Filed 10-13-20; 8:45 am]
BILLING CODE 4337-15-P