Education Contracts Under Johnson-O'Malley Act, 30647-30666 [2019-13632]
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RM19–10–000, and must include the
commenter’s name, the organization
they represent, if applicable, and
address.
42. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
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Street NE, Washington, DC 20426.
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remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
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VII. Document Availability
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By direction of the Commission.
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Issued: June 20, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2019–13582 Filed 6–26–19; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 273
[190D0102DR/DS5A300000/
DR.5A311.IA000119]
RIN 1076–AF24
Education Contracts Under JohnsonO’Malley Act
Bureau of Indian Affairs,
Interior.
ACTION: Proposed rule.
AGENCY:
Under the Johnson O’Malley
(JOM) Act, the Bureau of Indian
Education (BIE) provides assistance,
through contracts, for Indian students
attending public schools and nonsectarian private schools. Congress
recently updated the JOM Act with the
JOM Supplemental Indian Education
Program Modernization Act (JOM
Modernization Act). This proposed rule
would implement the JOM Act, as
amended, to clarify the eligibility
requirements for Indian students to
receive the benefits of a JOM contract,
to clarify the funding formula and
process to ensure full participation of
contracting parties, and to otherwise
reconcile and modernize the rules to
comport with the activities of the
contracting parties under the Act, as
amended.
SUMMARY:
Please submit comments by
August 26, 2019.
ADDRESSES: You may submit comments
by any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. The rule is
listed under the agency name ‘‘Bureau
of Indian Affairs.’’
—Email: consultation@bia.gov. Include
the number 1076–AF24 in the subject
line of the message.
—Mail: Elizabeth Appel, Office of
Regulatory Affairs & Collaborative
Action, U.S. Department of the
Interior, 1849 C Street NW, MIB–
4660–MS, Washington, DC 20240.
Include the number 1076–AF24 in the
subject line of the message.
—Hand delivery: Elizabeth Appel,
Office of Regulatory Affairs &
Collaborative Action, U.S. Department
of the Interior, 1849 C Street NW, MS
4660, Washington, DC 20240. Include
DATES:
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30647
the number 1076–AF24 in the subject
line of the message.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and search for
Docket Number BIA–2018–0002. 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 on the information
collections contained in this proposed
regulation (see ‘‘Paperwork Reduction
Act’’ section, below) are separate from
those on the substance of the rule. Send
comments on the information collection
burden to OMB by facsimile to (202)
395–5806 or email to the OMB Desk
Officer for the Department of the
Interior at OIRA_DOCKET@
omb.eop.gov. Please send a copy of your
comments to the person listed in the
FOR FURTHER INFORMATION CONTACT
section of this notice.
Please see ‘‘V. Tribal Consultation’’ of
this preamble for addresses of Tribal
consultation sessions on this proposed
rule.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative
Action, (202) 273–4680;
elizabeth.appel@bia.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Overview of Proposed Rule
A. Indian Student Eligibility
1. History of Indian Student Eligibility for
Benefits of JOM Education Contracts
2. March 2018 Proposed Rule: Comments
and Responses
3. Proposed Revisions to Indian Student
Eligibility Requirements
B. Funding Formula
C. Other Reconciliation and Modernization
III. Subpart-by-Subpart Summary of Proposed
Changes
IV. Crosswalk of Proposed Changes
V. Tribal Consultation
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866 and 13563)
B. Reducing Regulation and Controlling
Regulatory Costs (E.O. 13771)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement
Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 12630)
G. Federalism (E.O. 13132)
H. Civil Justice Reform (E.O. 12988)
I. Consultation With Indian Tribes (E.O.
13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O.
13211)
M. Clarity of This Regulation
N. Public Availability of Comments
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I. Background
The JOM Act authorizes the Secretary
of the Interior (Secretary) to enter into
contracts with States, schools, and
private nonsectarian organizations, and
to expend appropriated funds in
support of Indian students under such
contracts. See, 25 U.S.C. 5341 et seq.
Federally recognized Indian Tribes and
Tribal organizations are also eligible to
apply for JOM contracts. Contracts
under JOM contain educational
objectives that adequately address the
educational needs of the Indian students
who are to be beneficiaries of the
contract and assures that the contract is
capable of meeting such objectives. See,
25 U.S.C. 5345. The regulations at 25
CFR part 273 implement this authority.
The regulations at 25 CFR part 273
became effective in 1975 and the rule
has been in effect over 40 years without
substantial changes. In 2018, Congress
updated the JOM Act with the JOM
Modernization Act. This proposed rule,
if adopted, would update 25 CFR part
273 to implement the JOM
Modernization Act and make other
changes necessary to update the rule, as
described below.
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II. Overview of Proposed Rule
The JOM Modernization Act requires
the BIE to revise the existing regulations
at 25 CFR part 273, to:
1. Determine how the regulatory
definition of ‘‘eligible Indian student’’
may be revised to clarify eligibility
requirements for contracting parties
under the Act;
2. Determine, as necessary, how the
funding formula described in § 273.31
may be clarified and revised to ensure
full participation of contracting parties
and provide clarity on the funding
process under the Act; and
3. Reconcile and modernize the rule
to comport with the activities of the
contracting parties under the Act.
The proposed rule includes changes
to meet these requirements. Specifically,
the proposed rule would:
• Revise who is an eligible Indian
student;
• Clarify how funds can be used;
• Describe how a new contracting
party can enter into contracts;
• Revise what requirements do not
apply to Tribal organizations;
• Revise the funding formula to
reflect how it is currently calculated;
• Clarify the annual reporting
requirements;
• Clarify the contract renewal
process;
• Add a new subpart J—
Responsibility and Accountability, to
address the Secretary’s reporting
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requirements and compliance with
Paperwork Reduction Act; and
• Clarify appeals processes.
Other technical edits would:
• Revise the rule generally to meet
plain language requirements;
• Add, delete, and revise definitions
to provide clarity;
• Divide long sections into shorter
sections to provide clarity; and
• Update citations and remove
citations that no longer apply.
The BIE has proposed changes that
reflect the need to update Part 273 and
to incorporate the new requirements of
the JOM Modernization Act. The BIE
welcomes comments on those subparts
that are new and on the substantive
changes to the current rule, including:
Terms and definitions; eligible entities;
eligible students; funding formula;
annual reporting requirements; contract
renewal process; and appeals. The
following provides more background
and detail on these proposed changes.
A. Indian Student Eligibility
On March 21, 2018, the Bureau of
Indian Education (BIE) proposed a rule
to update one section of the JOM
regulations regarding when Indian
students are eligible for benefits of JOM
education contracts, to delete the
requirement that the Indian student
must have 1⁄4 or more degree of Indian
blood. See 83 FR 12301. BIE received
six relevant comment submissions on
the proposed rule, which are
summarized below. During this time,
the JOM Modernization Act was also
moving through Congress and
ultimately became law on December 31,
2018. See Public Law 115–404. The JOM
Modernization Act requires rulemaking
on the same topic as the March 2018
proposed rule: Student eligibility for the
benefits of JOM education contracts. BIE
is now taking a new look at its March
2018 proposed rule based on comments
received and proposing a new rule to
address both the eligibility
qualifications and the other
requirements of the JOM Modernization
Act.
1. History of Indian Student Eligibility
for Benefits of JOM Education Contracts
In 1957, the Bureau of Indian Affairs
(BIA) published a rule, then at 25 CFR
33.4 (Contracts with public schools),
which allowed for the expenditure of
monies under contracts for the
education of ‘‘Indian children of onefourth or more degree Indian blood.’’
See 22 FR 10533 (December 24, 1957).
In 1974, BIA finalized a rule updating
part 33 and defining ‘‘Indian’’ at
§ 33.1(g) as an individual of one-fourth
or more degree of Indian blood and a
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member of a Tribe, band, or other
organized group of Indians, including
Alaska Natives, which is recognized by
the Secretary as being eligible for BIA
Services. See 39 FR 30114 (August 21,
1974). In 1975, BIA replaced part 33
with part 273 and made changes in
accordance with the Johnson O’Malley
Act, 25 U.S.C. 452–456, as amended by
the Indian Self-Determination and
Education Assistance Act (Pub. L. 93–
638). See 40 FR 51282, 51286
(November 4, 1975).1 In the new
§ 273.12, BIA listed the eligibility
criteria for students as one-fourth or
more degree Indian blood and
recognized by the Secretary as being
eligible for Bureau Services. See 40 FR
51303, 51305 (November 4, 1975).
The eligibility provision has not been
updated in the regulations since 1975.
Prior to the 1990’s, the Department
implemented this regulation to require
one-fourth or more degree Indian blood.
In 1990, the U.S. District Court for the
District of Nevada stated that this
regulatory requirement was too
restrictive. See, Nevada Urban Indians,
Inc. v. United States, CV–N–90–238
BRT (September 12, 1990). In 1991, the
Director of the then-Office of Indian
Education Programs (the predecessor
office to BIE), issued a memorandum to
all Education Line Officers and JOM
Coordinators stating that to be eligible
for JOM services, the recipient must be:
• A member of, or at least a onefourth degree Indian blood descendent
of, a member of an Indian Tribe which
is eligible for the special programs and
services provided by the United States
through the Bureau of Indian Affairs to
Indians because of their status as
Indians; and
• Reside on or near an Indian
reservation or meet the criteria for
attendance at a Bureau off-reservation
boarding school.
In April 2015, BIE held a series of
Tribal consultation sessions to address
remaining confusion when counting
eligible students and proposed various
options for revision to allow greater
flexibility. Most Tribal participants
supported an option that would delete
the word ‘‘and’’ from § 273.12, allowing
for eligibility for students who are either
Tribal members or have one-fourth
degree Indian blood.
2. March 2018 Proposed Rule:
Comments and Responses
The March 2018 proposed rule would
have revised § 273.12 of the regulations
1 Note: The BIA originally proposed replacing
part 33 with part 403, but at the request of the
Office of the Federal Register, ultimately
redesignated part 33 as part 273. See 40 FR 40982
(September 4, 1975).
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to define as eligible students only those
students who are members of a federally
recognized Tribe and delete the
provision stating that students must also
have one-fourth or more degree Indian
blood. The March 2018 proposed rule
stated that the Department does not
require a certain degree of Indian blood
and, as such proposed to delete the
requirement for a blood degree
quantum.
BIE received six relevant comment
submissions on the proposed rule.
Three of the submissions, including one
from a Tribe, generally supported the
proposed rule. Another commenter
supported the rule, but questioned
whether there are statistics showing that
the blood requirement has not been in
use over the past 27 years. The other
comments are summarized here.
Comment 1: Delay the rulemaking
until passage of the Johnson O’Malley
Modernization Act. A few commenters
noted that legislation requiring Interior
to conduct a new student count and
addressing the same topic as the March
2018 rule was pending in Congress. One
commenter specifically suggested
delaying the rulemaking as the JOM
Modernization Act was moving through
Congress because that Act requires a
rulemaking that would be duplicative of
the proposed rule.
Response: BIE accepted this comment,
delaying further action on the March
2018 proposed rule until the Act
became law in December 2018 and is
now proposing a new rule that takes
into account both the requirements of
the JOM Modernization Act and
comments received on the March 2018
proposed rule.
Comment 2: Retain the current
regulation requiring a student to be both
a member of a federally recognized
Tribe and one-fourth degree of Indian
blood or more. One Tribal commenter
interpreted the current regulatory
language as requiring both Tribal
membership and one-fourth degree of
Indian blood or more. According to that
Tribal commenter, removing the onefourth blood quantum requirement
would increase the number of eligible
students from 271,884 (the last national
count of students funded through JOM,
done in 1995) to over 1 million
students. The Tribe’s primary concern is
that the funding per student will
decrease to an unacceptable level.
Response: BIE does not currently
require both membership and a onefourth degree blood quantum because
the U.S. District Court for the District of
Nevada stated that requiring a student to
meet both these requirements for
eligibility was too restrictive. See,
Nevada Urban Indians, Inc. v. United
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States, CV–N–90–238 BRT (September
12, 1990). In accordance with the
requirements of the JOM Modernization
Act, BIE will conduct an updated count
of eligible Indian students to provide
accuracy for Congress to determine the
appropriate per-student funding
amount.
Comment 3: Allow Indian students to
be eligible for benefits of a JOM contract
if they are a member of a federally
recognized Tribe or, in the alternative,
are of one-fourth degree of Indian blood
or more. The National Indian Education
Association (NIEA) pointed out in its
comments that thousands of Native
students have at least one-fourth blood
quantum and currently participate in
JOM programs, but are not Tribal
members due to enrollment
requirements (e.g., requirements that
prevent enrollment until a certain age).
The NIEA further noted that Tribes have
the flexibility to provide services to
students that are either enrolled in a
Tribe or are descendants with at least
one-fourth blood quantum. These
students are eligible to attend BIE
schools and participate in other Bureaufunded programs. The NIEA therefore
recommended that the regulations
reflect this approach of including
students with at least one-fourth degree
blood quantum as eligible for the
benefits of JOM contracts, regardless of
whether such students are Tribal
members, both to align the regulations
with current practice and to provide
parity with other Bureau-funded
programs.
Response: The rule being proposed
today would incorporate this change by
defining an eligible student as one who
is a member of, or is at least one-fourth
degree Indian blood descendant of a
member of a federally recognized Tribe.
This new proposed rule will clarify that
a student who is not enrolled in a
federally recognized Tribe (e.g., due to
enrollment requirements) is still eligible
if the student has documentation of
descendancy indicating at least onefourth Indian blood from federally
recognized Tribe. This new proposed
rule better aligns with eligibility
requirements for Indian students in
other BIE programs, such as the Indian
Student Equalization Program (ISEP).
The ISEP, which applies to BIE-funded
schools, requires an eligible Indian
student to be a member of, or at least
one-fourth degree Indian blood
descendant of a member of, a Tribe that
is eligible for the special programs and
services provided by the United States
through the Bureau to Indians because
of their status as Indians, as well as
residing on or near a reservation, or
meets the criteria for attendance at a
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Bureau off-reservation home-living
school. See 25 U.S.C. 2007(f).
Comment 4: Clarify what it means to
be eligible for Bureau services the
definition of eligible students. A few
commenters noted the importance of
clarity in the eligibility requirements.
One commenter stated that the rule
should specify the requirements for a
student to be ‘‘recognized by the
Secretary as being eligible for Bureau
services.’’
Response: BIE is addressing this
comment by using language in the
proposed rule that now refers to
membership in a federally recognized
Tribe. The Secretary publishes on an
annual basis a list of Indian entities
recognized and eligible to receive
services from BIA under the 1994 Lists
Act. See, e.g., 84 FR 1200 (February 1,
2019). This list is the list of federally
recognized Tribes. Individuals are then
eligible for Bureau services by virtue of
the individual’s membership in a
federally recognized Tribe. The
proposed rule would clarify this portion
of the eligibility criteria.
3. Proposed Revisions to Indian Student
Eligibility Requirements
This proposed rule would establish
clearer eligibility requirements for
Indian students to obtain the benefits of
a JOM contract by specifying that a
student either must be a member of a
federally recognized Tribe or at least
one-fourth degree Indian blood
descendant of a member of a federally
recognized Tribe. See § 273.112 of the
proposed rule.
B. Funding Formula
Within the current rule, the funding
formula is the number of eligible Indian
students multiplied by 25 percent of
whichever is higher: The State average
per pupil operating cost or National
average per pupil operating cost. Since
1988, BIE has been using a funding
formula that relies on data from the U.S.
Department of Education on the State
annual cost per pupil and the National
annual cost per pupil to determine a
weight factor. The weight factor is then
used to calculate funding, subject to a
minimum weight factor.
The JOM Modernization Act requires
the BIE determine ‘‘as necessary,’’ how
the funding formula may be ‘‘clarified
and revised’’ to ensure full participation
of contracting parties and provide
clarity on the funding process. The BIE
proposes to revise the funding formula
to reflect the formula used since 1988,
to ensure full participation of
contracting parties. The revised
language will provide clarity on what
source is used to determine the initial
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calculations, how the calculation is
made to determine a weight factor by
State, and how the minimum weight
factor is to be used should the
calculated weight factor for the State fall
below the minimum. The funding
formula for contracts will be based on
the calculated weight factor and the
number of eligible Indian students to be
served by the contract.
The JOM Modernization Act, Section
7(e)(1)(A), includes a ‘‘hold harmless’’
provision that remains in effect for four
years, which states that any existing
contracting party may not receive an
amount that is less than the amount that
that party received for the fiscal year
preceding the date of enactment of the
Act. After expiration of the four years,
the Act provides that no contractor may
receive more than a 10 percent decrease
from the amount received in the prior
year. The BIE is not able to recommend
a new funding formula without
decreasing the funds made available to
existing contracting parties;
additionally, after four years it is
possible that existing contractors may
receive reductions in funding even
beyond the FY 2017 levels. The BIE
welcomes comments on this matter for
any recommendations on how to revise
the funding formula proposed in the
rule to support all existing contracting
parties receiving funding for JOM
programs. Under the rule as proposed
the funding formula at § 273.31 will be
at § 273.140.
C. Other Reconciliation and
Modernization
The JOM Modernization Act requires
BIE to otherwise reconcile and
modernize the rules to comport with the
activities of the contracting parties.
After a thorough review of the current
rule, there were areas that clearly
required a revision. The revisions being
proposed are, among other things,
intended to make the regulations more
user-friendly through plain language.
III. Subpart-by-Subpart Summary of
Proposed Changes
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A. Subpart A—General Provisions and
Definitions
In subpart A, the BIE proposes to
continue to address the substance of
each of the existing sections (purpose
and scope, definitions, revision or
amendment of regulations, and policy of
maximum Indian participation) with
updates. For example, BIE proposes to
split the purpose and scope section into
several sections; add, revise, and
remove definitions; and change
requirements for revising or amending
the regulations to provide that the
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Bureau will follow the Administrative
Procedure Act. The BIE proposes to add
a section on how the Secretary will
ensure full geographic coverage and full
participation to address a requirement
in the JOM Modernization Act that the
Secretary consult with eligible entities
that have not previously participated in
the JOM program.
B. Subpart B—Program Eligibility &
Applicability
The proposed subpart B addresses the
same topics of eligible applicants (but
proposes updating the term to refer to
‘‘eligible entities’’ to reflect the language
of the JOM Modernization Act) and
eligible students as the current subpart
B, but proposes moving the other
subpart B topics to subparts C, D and E.
The proposed subpart B would also
address what funds may be used under
JOM contracts and what programs may
be contracted under the JOM Act. The
BIE proposes to revise the description of
‘‘eligible students’’ to reflect
information collected during previous
Tribal consultations sessions and add
examples of how JOM contract funds
can be used. The BIE further proposes
to clarify which provisions Tribal
organizations are subject to (see
proposed § 273.111) and clarify that
Tribal organizations are not excluded
from the annual reporting requirements.
C. Subpart C—Indian Education
Committee
The proposed subpart C would
address the Indian Education
Committee, which is in current subpart
B. The BIE proposes to revise the
description of ‘‘Indian Education
Committee’’ to include preference in
committee membership be given to
parents and guardians of children
enrolled in a school. The BIE also
proposes to remove a requirement to
report to the Bureau regarding who will
serve on the Indian Education
Committee. The BIE proposes to add
that organizational papers and by-laws
of the Indian Education Committee may
include additional powers and duties
that would permit the Committee to,
among other things, establish policy and
procedures for hearing grievances.
D. Subpart D—Education Plan
The proposed subpart D would
address the contents of the Education
Plan (currently addressed in subpart B)
and would add a section specifying that
an education plan will be approved by
a Regional Director (updated from ‘‘Area
Director’’), under 25 U.S.C. 5345.
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E. Subpart E—Contract Proposal,
Review, and Approval
The BIE proposes to move provisions
that are in the current subpart B
regarding applications and requests to
contract, contract review, and approval,
to a new subpart E. This proposed
subpart would include a section
regarding how eligible entities who have
not participated in the program in the
past should submit a contract proposal.
The BIE proposes to change the contract
approval period from 60 days to 90 days
and to indicate that contract approval
and award will be made through the
applicable Regional office, eliminating
the need for the central office to process
and approve. The change from 60 to 90
days aligns JOM contract approval with
the statutory 90-day approval period for
both Public Law 93–638 contracts and
Public Law 102–477 plans. The
proposed subpart also includes updates
to outdated statutory and regulatory
citations. Since the BIE is responsible
for administering Indian education
programming for the Department, the
BIE is considering changes to this
proposed rule to reflect JOM contract
administration partly or entirely
through the BIE as opposed to the
Bureau of Indian Affairs. The BIE
welcomes comments on such possible
changes.
F. Subpart F—Funding Provisions
The BIE proposes to move provisions
that are in current subpart C to a new
subpart F. The proposed subpart would
revise the funding formula to reflect
current practice, with the four-year
‘‘hold harmless’’ and phased decrease
approach provided by the JOM
Modernization Act. This proposed
subpart would also move the section on
advance payments from current subpart
D and revise the section on advance
payments to comply with 25 U.S.C.
5324(b).
G. Subpart G—Annual Reporting
Requirements
The BIE proposes to revise reporting
requirements to reflect the annual
student count reporting requirements of
the JOM Modernization Act. As such,
the BIE proposes to add sections
requiring an annual report, describing
what must be included in the annual
report, describing what will happen if a
contractor fails to submit an annual
report, and identifying who will notify
a contractor that they have failed to
submit an annual report. The BIE also
proposes to add a section explaining
that the Bureau is required to provide
technical assistance and training, and
describing the process to request
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also include new provisions adding a
contract renewal process.
assistance to meet annual reporting
requirements. The BIE proposes to add
a section describing how a decrease in
the reported student count will affect
future funding. The BIE proposes to
include language reflective of the JOM
Modernization Act defining a
‘‘contracting party’’ as an entity that has
a contract through a program authorized
under this Act.
H. Subpart H—General Contract
Requirements
Proposed subpart H addresses many
of the same topics as current subpart D.
In addition to updating outdated
statutory and regulatory citations, the
BIE proposes to update records
requirements now that contract files are
to be filed under the Department
Records Schedule. The BIE proposes to
revise a contractor’s responsibility for
penalties under the Privacy Act
requirements. The BIE proposes to
revise who will investigate a complaint
received of a Civil Rights Act violation
in State school districts and provide that
such investigations will be performed
by the Department of Education and
remove references to the Department of
Justice.
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I. Subpart I—Contract Renewal,
Revisions, and Cancellations
Proposed subpart I would address the
topics in current subpart E, but would
J. Subpart J—Responsibility and
Accountability
The BIE proposes to add this subpart
to meet requirements in the JOM
Modernization Act which, among other
things, requires the Secretary to provide
an annual report to the Committee on
Indian Affairs in the Senate, the
Subcommittee on Interior, Environment,
and Related Agencies of the Committee
on Appropriations of the Senate, the
Committee on Education and the
Workforce of the House of
Representatives, and the Subcommittee
on Interior, Environment, and Related
Agencies of the Committee on
Appropriations of the House of
Representatives that includes a
determination on the number of eligible
students served by each contracting
party, recommendations on appropriate
funding levels for the program based
upon such determination, and an
assessment of the contracts under JOM.
K. Subpart K—Appeals
The BIE proposes to change this
subpart (currently at subpart F) to
encourage the use of an Alternate
Dispute Resolution (ADR) process that
has been established by the Department
of the Interior prior to filling a formal
appeal. The proposed subpart would
30651
also be amended to refer to the
Contracts Dispute Act of 1978, 41 U.S.C.
7101–7109, which created the Civilian
Board of Contract Appeals (CBCA). The
CBCA is an independent tribunal with
its own formal appeal process.
Additional information on the CBCA
can be found at: https://www.dbca.gov/
index.html. Tribes and Tribal
organizations may bring appeals
involving Self-Determination Act
contracts before the CBCA under 25
U.S.C. 5331(d)–(e).
IV. Crosswalk of Proposed Changes to
25 CFR 273
The crosswalk below lists the current
sections, proposed sections, and a
summary of proposed substantive
changes. Except in a few instances, this
table does not note non-substantive
changes. For example, except in the
definitions sections, the crosswalk does
not note terminology changes that do
not substantively affect the meaning
(e.g. replacing ‘‘Area Director’’ with
‘‘Regional Director’’ or ‘‘Area Director or
Commissioner’’ with ‘‘approving
official,’’ ‘‘Bureau contracting officer’’
with ‘‘awarding official,’’ ‘‘application
to contract’’ with ‘‘contract proposal’’ or
‘‘request’’).
Current 25 CFR section
Proposed 25 CFR section
Summary of proposed changes
273.1(a) Purpose and Scope
273.1(b) & (c) .......................
273.101 What is the purpose and scope of this part?
..........................................................................................
273.1(d) & (e) .......................
273.2 Definitions ..................
273.105 How do these regulations affect existing Tribal rights?
273.106 What key terms do I need to know?
No substantive change.
Combines with current 273.11(b) and (c), into proposed
§ 273.111.
No substantive change.
273.3(a) & (e) Revision or
amendment of regulations.
273.3(b) & (c) .......................
273.102 How will revisions or amendments be made
to this part?
..........................................................................................
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—Deletes definitions of ‘‘Commissioner,’’ ‘‘Public Law
93–638,’’ ‘‘Superintendent,’’ and ‘‘Assistant Secretary—Indian Affairs’’ because those terms are not
used.
—Adds definitions for ‘‘Academic year,’’ ‘‘Appeal,’’ ‘‘Approving official,’’ ‘‘Awarding official,’’ ‘‘Calendar year,’’
‘‘Capital outlay,’’ ‘‘Contract,’’ ‘‘Contracting party,’’
‘‘Contractor,’’ ‘‘Debt retirement,’’ ‘‘Director,’’ ‘‘Eligible
entity,’’ ‘‘Existing contracting party,’’ ‘‘Fiscal year,’’
‘‘Indian advisory school board,’’ ‘‘Initial contract proposal and contract proposal,’’ ‘‘Local Indian Committee,’’ ‘‘New contracting party,’’ ‘‘Public school district,’’ ‘‘Regional Director,’’ ‘‘School official or school
administrator,’’ ‘‘Scope of work,’’ and ‘‘System of
record.’’
—Replaces definition of ‘‘Area Director’’ with a definition of ‘‘Regional Director.’’
—Revises the definitions of ‘‘Bureau’’ to refer to BIE,
‘‘Days’’ to address cases where a specified date falls
on a weekend or holiday, ‘‘Johnson-O’Malley Act’’ to
reflect statutory updates, and ‘‘Supplemental programs’’ to reflect updates to citations.
No substantive change.
Deletes because this process is already required under
the Administrative Procedure Act.
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Current 25 CFR section
Proposed 25 CFR section
Summary of proposed changes
273.3(d) ................................
..........................................................................................
273.4 Policy of maximum
Indian participation.
273.103 What is the Secretary’s policy of maximum
Indian participation?
273.104 How will the Secretary extend geographic
coverage and enhance participation under the Johnson-O’Malley Act?
273.110 Who is eligible to request contracts under the
Johnson-O’Malley Act?
Deletes annual consultation requirement because regulation already requires consultation for revisions or
amendments.
No substantive change.
273.11(a) Eligible applicants
273.11(b) & (c) .....................
273.12
Eligible students ....
273.13(a) & (b) Proposals
eligible for contracts.
273.13(c) ..............................
273.14 Preparing the education plan.
273.15(a) & (b) Establishment of Indian Education
Committee.
273.15(c) & (d) .....................
273.16(a) Powers and duties
of Indian Education Committee.
273.16(b) ..............................
273.17(a) Programs approved by the Indian Education Committee.
273.17(b) ..............................
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273.17(c) ..............................
273.18 Additional requirements for education plan.
273.19 Obtaining application forms.
273.20 Content of application to contract.
273.21 Tribal request for
contract.
273.22(a) Application approval officials.
273.22(b) ..............................
273.23 Submitting application to Area Office.
273.24 Area Office review
and decision.
273.25 Deadline for Area
Office action.
273.26 Submitting application to Central Office.
273.27 Central Office review and decisions.
273.28 Deadline for Central Office action.
273.29 Negotiating the
contract.
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273.111 How do the requirements for Tribal organizations differ from those for other eligible entities?
273.112 Who is an eligible Indian student under the
Johnson-O’Malley Act? and 273.128 How are contracts prioritized?
273.113 How can the funds be used under the Johnson-O’Malley Act?
273.126 What proposals are eligible for contracts
under the Johnson-O’Malley Act?
§ 273.129 May the Regional Director reimburse a public school district for educating non-resident Indian
students?
273.119 What is an education plan and what must it
include?
273.120 Does an education plan need to be approved
by the Regional Director?
273.121 When does the Regional Director approve
the education plan?
273.115 Who determines the unique educational
needs of eligible Indian students?
New section.
Revises to clarify which school districts are eligible entities to contract, to define the purpose of the contracts, and to refer to requesting, rather than applying
for, contracts.
Revises to state which provisions Tribal organizations
are not subject to.
Revises based on recommendations received in prior
Tribal consultations.
New section.
No substantive change.
No substantive change.
Revises the introduction paragraph to include language
from 25 U.S.C. 5345 and combines sections.
New section.
New section.
No substantive change.
273.116 Does an Indian Education Committee need
to establish procedures and report to the Regional
Director?
273.117 What are the powers and duties of the Indian
Education Committee?
Deletes requirement to file as soon as practicable.
273.118 Are there additional authorities an Indian
Education Committee can exercise?
273.114 What programs may be contracted under the
Johnson-O’Malley Act?
No substantive change.
273.171 Can a contractor make changes to a program approved by an Indian Education Committee?
273.127 Can a contract include funds to support the
duties of an Indian Education Committee?
..........................................................................................
No substantive change.
273.125 How may a new contracting party enter into
contract under the Johnson-O’Malley Act?
273.130 What is required in the contract proposal for
funding?
273.131 What is required for a Tribal request for a
contract?
273.132 Who will review and approve the contract
proposal?
..........................................................................................
..........................................................................................
273.133
What is the process for review and decision?
273.134
What is the timeframe for contract decision?
No substantive change.
No substantive change.
No substantive change.
Combines with current section 273.14 (preparing the
education plan), into proposed section 273.119.
Revises language to reflect an initial contract proposal
versus an application to contract.
Revises language to reflect an initial contract proposal
versus an application to contract.
Deletes the February 1 deadline for requests to contract.
Revises to reflect current process of Regions and Regional Director.
Deletes.
Deletes.
..........................................................................................
Replaces ‘‘Part 2 of this Chapter’’ with ‘‘Subpart I of
this part.’’
Extends timeline for approval from 60 days to 90 days
to allow for additional review.
Deletes because proposals are submitted to Regions.
..........................................................................................
Deletes because proposals are submitted to Regions.
..........................................................................................
Deletes because proposals are submitted to Regions.
273.135
No substantive change.
Who will negotiate the contract?
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Current 25 CFR section
Proposed 25 CFR section
Summary of proposed changes
273.31(a) Distribution formula.
273.31(b) ..............................
273.140 What is the funding formula to distribute
funds?
..........................................................................................
273.32 Pro rata requirement.
273.33 Use of funds for
operational support.
273.34 Use of other Federal, State and local funds.
273.35 Capital outlay or
debt retirement.
273.36 Eligible subcontractors.
273.37 Use of funds outside of schools.
273.38 Equal quality and
standards of education.
273.41 Special program
provision to be included in
contract.
273.42 Civil Rights Act violations.
273.141
Revises to reflect the current funding formula calculated
by the BIE.
Deletes because there is no authority for exceptions in
25 U.S.C. 5342 et. seq.
No substantive change.
273.43
Advance payments
273.142 Are advance payments on a contract allowed
under the Johnson-O’Malley Act?
273.44 Use and transfer of
Government property.
273.45(a)–(c) Indian preference.
273.176 May there be a use and transfer of Government property?
273.174 Are there any Indian preference requirements
for contracts and subcontracts?
273.45(d) ..............................
273.175 How will a Tribal governing body apply Indian
preference requirements for contracts and subcontracts?
273.46 Liability and motor
vehicle insurance.
273.47 Recordkeeping ......
273.177 Who will provide liability and motor vehicle
insurance?
273.178 Are there contract recordkeeping requirements?
273.48 Audit and inspection.
273.49 Freedom of Information.
273.50(a) Annual Reporting
273.179 Are there contract audit and inspection requirements?
273.180 Are there disclosure requirements for contracts?
273.150 Does an existing contracting party need to
submit any reports? and 273.151 What information
must the existing contracting party provide in the annual report? and 273.152 When is the annual report
due?
273.50(b) ..............................
273.50(c) ..............................
..........................................................................................
273.153 Who else needs a copy of the annual report?
273.154 What will happen if the existing contracting
party fails to submit an annual report?
273.155 How will the existing contracting party know
when reports are due?
273.156 Will technical assistance be available to comply with the annual reporting requirements?
273.157 What is the process for requesting technical
assistance and/or training?
273.158 When should the existing contracting party
request technical assistance and/or training?
273.159 If the existing contracting party reported a
decrease of eligible Indian students, how will funding
be reduced?
273.160 Can the Secretary apply a ratable reduction
in Johnson-O’Malley program funding?
273.161 What is the maximum decrease in funding allowed?
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Will funding be pro-rated?
..........................................................................................
Must other Federal, State and local funds be
Deletes because this is already part of the definition of
‘‘operational support.’’
No substantive change.
273.143
used?
273.144
Capital
273.145
Can Johnson-O’Malley funds be used for
outlay or debt retirement?
How can funds be used for subcontractors?
No substantive change.
273.146
Can funds be used outside of schools?
No substantive change.
No substantive change.
273.147 Are there requirements of equal quality and
standard of education?
273.170 What special program provisions must be included in the contract?
No substantive change.
273.183 Can the Secretary investigate a potential
Civil Rights Act violation?
Replaces ‘‘Department of Health, Education and Welfare’’ with ‘‘Department of Education,’’ deletes requirement for a Memorandum of Understanding between the Department of the Interior and the Department of Health, Education, and Welfare. Deletes provision regarding formal hearings.
Replaces outdated citations with provision allowing Regional Director to determine installments and conditions under 25 U.S.C. 4324(b).
No substantive change.
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No substantive change.
Adds ‘‘for the benefit of Indian students’’ from 25
U.S.C. 5306(b), adds to (a) ‘‘in connection with the
administration of such contract(s)’’ from 25 U.S.C.
5306(b), and deletes redundant language.
Deletes language stating ‘‘subject to the provisions of
part 14H of title 41’’ and ‘‘to the extent that such requirements are not inconsistent with the purpose and
intent of paragraphs (a), (b) and (c) of this section.’’
No substantive change.
Replaces ‘‘General Records Schedules and the Bureau
Records Control Schedule’’ with updated records
schedule.
Replaces ‘‘Comptroller General and the Secretary’’ with
‘‘Regional Director.’’
No substantive change.
Adds three additional reporting elements as required by
Public Law 115–404: General information about the
contractor, general information about the number and
names of the schools, and the number of eligible Indian students who were served using the amounts allocated during the previous fiscal year.
Deletes.
No substantive change.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
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Current 25 CFR section
273.51
Penalties ................
273.52
State school law ....
Proposed 25 CFR section
273.53 Applicable procurement regulations.
273.182 Are there penalties for misusing funds or
property?
273.172 May State employees enter Tribal lands, reservations or allotments?
273.173 What procurement requirements apply to
contracts?
273.54 Privacy Act requirements.
273.181 Are there Privacy Act requirements for contracts?
273.6 Contract revision or
amendments.
273.62 Cancelling a contract for cause.
273.71 Contract Appeal
and
273.72 Appeal from decision to cancel contract for
cause.
273.73 Other appeals ........
273.191 How may a contract be renewed for Johnson-O’Malley funding?
273.192 What is required to renew a contract?
273.193 May a contract be revised or amended?
273.194 Does the Indian Education Committee have
authority to cancel contracts?
273.195 May a contract be cancelled for cause?
273.206
May a contract be appealed?
..........................................................................................
..........................................................................................
273.201 What is required for the Secretary to meet
his or her reporting responsibilities?
273.202 Does this part include an information collection?
273.207 How does a contractor request dispute resolution?
273.208 How does a Tribal organization request an
appeal?
273.209 How does a State, public school district, or
an Indian corporation request an appeal?
III. Procedural Requirements
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Summary of proposed changes
A. Regulatory Planning and Review
(E.O. 12866 and 13563)
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
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No substantive change.
No substantive change.
Replaces ‘‘Procurement Regulations (41 CFR part 1),
as supplemented by the Interior Procurement Regulations (41 CFR part 14), and the Bureau of Indian
Affairs Procurement Regulations (41 CFR part 14H),
except 41 CFR part 14H–70’’ with ‘‘Acquisition Regulations at 48 CFR Part 1.’’
Updates citations, and clarifies the potential for criminal
penalties for knowingly and willfully disclosing a
record about an individual without the written request
or consent of that individual.
New section.
New section.
No substantive change.
New section.
Replaces ‘‘subpart C of 43 CFR part 4’’ for appeals
with ‘‘subpart K of this part’’.
Combines with current §§ 273.72 and 273.73 into proposed § 273.206.
Combines into proposed § 273.206.
Combines into proposed § 273.206.
New section.
New section.
New section.
New section.
New section.
exchange of ideas. We have developed
this proposed rule in a manner
consistent with these requirements. This
proposed rule is also part of the
Department’s commitment under the
Executive Order to reduce the number
and burden of regulations.
B. Reducing Regulations and
Controlling Regulatory Costs (E.O.
13771)
E.O. 13771 of January 30, 2017,
directs Federal agencies to reduce the
regulatory burden on regulated entities
and control regulatory costs. E.O. 13771,
however, applies only to significant
regulatory actions, as defined in Section
3(f) of E.O. 12866. Therefore, E.O. 13771
does not apply to this rule.
C. Regulatory Flexibility Act
The Department of the Interior
certifies that this rule 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.).
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D. Small Business Regulatory
Enforcement Fairness Act
This proposed rule is not a major
rulemaking under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement
Fairness Act. This proposed rule:
(a) Does not have an annual effect on
the economy of $100 million or more
because the funding available through
JOM does not approach this amount.
(b) Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions because this rule
affects only certain education contracts.
(c) Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises
because this rule affects only certain
education contracts.
E. 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
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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.
F. Takings (E.O. 12630)
This proposed rule does not affect a
taking of private property or otherwise
have taking implications under
Executive Order 12630 because this
rulemaking, if adopted, does not affect
individual property rights protected by
the Fifth Amendment or involve a
compensable ‘‘taking.’’ A takings
implication assessment is not required.
G. Federalism (E.O. 13132)
Under the criteria in section 1 of
Executive Order 13132, this rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement because the rule affects only
individuals’ eligibility under certain
education contracts. A federalism
summary impact statement is not
required.
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H. Civil Justice Reform (E.O. 12988)
This proposed rule complies with the
requirements of Executive Order 12988.
Specifically, this proposed 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.
I. Consultation With Indian Tribes (E.O.
13175)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and Tribal sovereignty. We
have evaluated this rule under the
Department’s consultation policy and
under the criteria in Executive Order
13175 and have determined that it has
substantial direct effects on federally
recognized Indian Tribes because one
portion of the criteria for eligibility of
Indian students is Tribal membership.
We will consult with Tribes following
publication of this proposed rule. BIE
consulted with Tribes on the eligibility
criteria in 2015 and provided an
opportunity for input on this subject
following publication of the March 2018
proposed rule; however, the statutory
deadline for completion of this
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rulemaking December 31, 2019,
prevents us from further consultation
prior to publication of this rule.
J. Paperwork Reduction Act
This rule contains information
collections requiring approval under the
Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq. In
accordance with the PRA, we provide
the general public and other Federal
agencies with an opportunity to
comment on new, proposed, revised,
and continuing collections of
information. This helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. It also helps the
public understand our information
collection requirements and provide the
requested data in the desired format.
We are soliciting comments on the
proposed ICR that is described below.
We are especially interested in public
comment addressing the following
issues:
(1) Is the collection necessary to the
proper functions of the BIE;
(2) Will this information be processed
and used in a timely manner;
(3) Is the estimate of burden accurate;
(4) How might the BIE enhance the
quality, utility, and clarity of the
information to be collected; and
(5) How might the BIE minimize the
burden of this collection of the
respondents, including through the use
of information technology.
Comments you submit in response to
this notice are a matter of public record.
We will include or summarize each
comment in our request to OMB to
approve this ICR.
Abstract: The regulations at 25 CFR
273, Subpart E, implement in section
7(c) Contracting Party Student Count
Reporting Compliance, of the JohnsonO’Malley Supplemental Indian
Education Program Modernization Act
(Pub. L. 115–404), enacted December 31,
2018. These regulations require the BIE
to implement an annual reporting
requirement for existing JOM
contractors to report a student count
served by each contracting party and for
the BIE to provide an assessment on the
contracts receiving JOM funds. The
information received from the annual
reporting requirements of the contractor
will allow the Secretary to provide an
annual report to the appropriate
Committee and Subcommittees in the
Senate and of the House of
Representatives. The JOM
Modernization Act indicates a
‘‘contracting party’’ is an entity that has
a contract through a program authorized
under this Act. It does not exclude
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30655
Tribal organizations from the annual
reporting requirements.
The Department is seeking approval
for a new OMB Control Number.
Title of Collection: Johnson O’Malley
Student Count Annual Report.
OMB Control Number: 1076–NEW.
Type of Review: New collection.
Respondents/Affected Public: Tribal
organizations, States, public school
districts, Indian corporations.
Total Estimated Number of Annual
Respondents: 312.
Total Estimated Number of Annual
Responses: 1,197.
Estimated Completion Time per
Response: Ranges from 2 to 80 hours.
Total Estimated Number of Annual
Burden Hours: 11,450.
Respondent’s Obligation: Required to
Obtain a Benefit.
Frequency of Collection: Annually.
Total Estimated Annual Non-hour
Burden Cost: $0.
K. 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 these are
‘‘regulations . . . whose environmental
effects are too broad, speculative, or
conjectural to lend themselves to
meaningful analysis and will later be
subject to the NEPA process, either
collectively or case-by-case.’’ 43 CFR
46.210(i). We have also determined that
the rulemaking does not involve any of
the extraordinary circumstances listed
in 43 CFR 46.215 that would require
further analysis under NEPA.
L. 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.
M. Clarity of This Regulation
We are required by Executive Orders
12866 (section 1(b)(12)), and 12988
(section 3(b)(1)(B)), and 13563 (section
1(a)), 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.
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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.
N. 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
V. Tribal Consultation
The JOM Modernization Act requires
the Secretary to undertake and complete
a rulemaking process, following the
provisions of subchapter II of chapter 5
of title 5 of the United States Code, by
December 31, 2019. The BIE will be
engaging in Tribal consultation and
consultation with eligible entities and
interested parties. Eligible entities
include existing JOM contractors and
potential JOM contractors, including
States, public school districts, tribal
organizations, Indian corporations, and
previously private schools. Interested
parties include, but are not limited to,
JOM Indian Education Committee
members, employees of public schools
serving American Indian students,
urban Indian communities, parents, and
students.
BIE will be hosting a listening session
for interested Tribal representatives on
June 24, 2019, at the National Congress
of American Indians (NCAI) Mid-Year
Conference in Sparks, Nevada. The BIE
will also conduct the following
consultations, in locations across the
country that reflect the greatest number
of JOM contracts.
Date
Time
Location
July 16, 2019 ...........
8 a.m.–10 a.m. (Local Time) Consultation with Tribes .........
July 16, 2019 ...........
1 p.m.–3 p.m. (Local Time) Consultation with Eligible Entities.
9:30 a.m.–11:30 a.m. (Local Time) Consultation with Tribes
Sequoyah High School, 17091 S Muskogee Ave., Tahlequah, OK 74464.
Sequoyah High School, 17091 S Muskogee Ave., Tahlequah, OK 74464.
Bismarck, ND—Please check https://www.bie.edu/JOM for
specific location.
Bismarck, ND—Please check https://www.bie.edu/JOM for
specific location.
Please see https://www.bie.edu/JOM for access information.
Please see https://www.bie.edu/JOM for access information.
Please see https://www.bie.edu/JOM for access information.
Please see https://www.bie.edu/JOM for access information.
July 19, 2019 ...........
July 19, 2019 ...........
July 23, 2019 ...........
1 p.m.–3 p.m. (Local Time) Consultation with Eligible Entities.
9 a.m.–12 p.m. (MDT) Consultation with Tribes ...................
July 23, 2019 ...........
1 p.m.–4 p.m. (MDT) Consultation with Eligible Entities ......
July 25, 2019 ...........
9 a.m.–12 p.m. (MDT) Consultation with Tribes ...................
July 25, 2019 ...........
1 p.m.–4 p.m. (MDT) Consultation with Eligible Entities ......
You can find additional information
at the BIE JOM web page at: https://
www.bie.edu/JOM/.
List of Subjects in 25 CFR Part 273
Government contracts, Indians—
education, Reporting and recordkeeping
requirements.
■ For the reasons set forth in the
preamble, the Department of the
Interior, Bureau of Indian Affairs,
proposes to revise 25 CFR part 273 as
follows:
PART 273—EDUCATION CONTRACTS
UNDER JOHNSON-O’MALLEY ACT
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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.
Subpart A—General Provisions and
Definitions
Sec.
273.101 What is the purpose and scope of
this part?
273.102 How will revisions or amendments
be made to this part?
273.103 What is the Secretary’s policy of
maximum Indian participation?
273.104 How will the Secretary extend
geographic coverage and enhance
participation under the JohnsonO’Malley Act?
273.105 How do these regulations affect
existing Tribal rights?
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273.106
What key terms do I need to know?
Subpart B—Program Eligibility &
Applicability
273.110 Who is eligible to request contracts
under the Johnson-O’Malley Act?
273.111 How do the requirements for Tribal
organizations differ from those for other
eligible entities?
273.112 Who is an eligible Indian student
under the Johnson-O’Malley Act?
273.113 How can the funds be used under
the Johnson-O’Malley Act?
273.114 What programs may be contracted
under the Johnson-O’Malley Act?
Subpart C—Indian Education Committee
273.115 Who determines the unique
educational needs of eligible Indian
students?
273.116 Does an Indian Education
Committee need to establish procedures
and report to the Director?
273.117 What are the powers and duties of
the Indian Education Committee?
273.118 Are there additional authorities an
Indian Education Committee can
exercise?
Subpart D—Education Plan
273.119 What is an education plan and
what must it include?
273.120 Does an education plan need to be
approved by the Regional Director?
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273.121 When does the Regional Director
approve the education plan?
Subpart E—Contract Proposal, Review and
Approval
273.125 How may a new contracting party
request a contract under the JohnsonO’Malley Act?
273.126 What proposals are eligible for
contracts under the Johnson-O’Malley
Act?
273.127 Can a contract include funds to
support the duties of an Indian
Education Committee?
273.128 How are contracts prioritized?
273.129 May the Regional Director
reimburse a public school district for
educating non-resident Indian students?
273.130 What is required in the contract
proposal for funding?
273.131 What is required for a Tribal
request for a contract?
273.132 Who will review and approve the
contract proposal?
273.133 What is the process for review and
decision?
273.134 What is the timeframe for contract
decision?
273.135 Who will negotiate the contract?
Subpart F—Funding Provisions
273.140 What is the funding formula to
distribute funds?
273.141 Will funding be pro-rated?
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273.142 Are advance payments on a
contract allowed under the JohnsonO’Malley Act?
273.143 Must other Federal, State and local
funds be used?
273.144 Can Johnson-O’Malley funds be
used for capital outlay or debt
retirement?
273.145 How can funds be used for
subcontractors?
273.146 Can funds be used outside of
schools?
273.147 Are there requirements of equal
quality and standard of education?
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Subpart G—Annual Reporting
Requirements
273.150 Does an existing contracting party
need to submit any reports?
273.151 What information must the existing
contracting party provide in the annual
report?
273.152 When is the annual report due?
273.153 Who else needs a copy of the
annual report?
273.154 What will happen if the existing
contracting party fails to submit an
annual report?
273.155 How will the existing contracting
party know when reports are due?
273.156 Will technical assistance be
available to comply with the annual
reporting requirements?
273.157 What is the process for requesting
technical assistance and/or training?
273.158 When should the existing
contracting party request technical
assistance and/or training?
273.159 If the existing contracting party
reported a decrease of eligible Indian
students, how will funding be reduced?
273.160 Can the Secretary apply a ratable
reduction in Johnson-O’Malley program
funding?
273.161 What is the maximum decrease in
funding allowed?
Subpart H—General Contract Requirements
273.170 Are there special program
provisions to be included in the
contract?
273.171 Can a contractor make changes to
a program approved by an Indian
Education Committee?
273.172 May State employees enter Tribal
lands, reservations or allotments?
273.173 What procurement requirements
apply to contracts?
273.174 Are there any Indian preference
requirements for contracts and
subcontracts?
273.175 How will a Tribal governing body
apply Indian preference requirements for
contracts and subcontracts?
273.176 May there be a use and transfer of
Government property?
273.177 Who will provide liability and
motor vehicle insurance?
273.178 Are there contract recordkeeping
requirements?
273.179 Are there contract audit and
inspection requirements?
273.180 Are there disclosure requirements
for contracts?
273.181 Are there Privacy Act requirements
for contracts?
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273.182 Are there penalties for misusing
funds or property?
273.183 Can the Secretary investigate a
potential Civil Rights Act violation?
Subpart I—Contract Renewal, Revisions,
and Cancellations
273.191 How may a contract be renewed for
Johnson-O’Malley funding?
273.192 What is required to renew a
contract?
273.193 May a contract be revised or
amended?
273.194 Does the Indian Education
Committee have authority to cancel
contracts?
273.195 May a contract be cancelled for
cause?
Subpart J—Responsibility and
Accountability
273.201 What is required for the Secretary
to meet his or her reporting
responsibilities?
273.202 Does this part include an
information collection?
Subpart K—Appeals
273.206 May a contract be appealed?
273.207 How does a contractor request
dispute resolution?
273.208 How does a Tribal organization
request an appeal?
273.209 How does a State, public school
district or an Indian corporation request
an appeal?
Authority: Secs. 201–203, Pub. L. 93–638,
88 Stat. 2203, 2213–2214 (25 U.S.C. 455–
457), unless otherwise noted.
Subpart A—General Provisions and
Definitions
§ 273.101 What is the purpose and scope
of this part?
The purpose of this part is to set forth
the process by which the Secretary will
enter into contracts for the education of
Indian students under the JohnsonO’Malley Act. Such contracts are for the
purpose of financially assisting those
efforts designed to meet the specialized
and unique educational needs of eligible
Indian students, including
supplemental programs and school
operational support, where such
support is necessary to maintain
established State educational standards.
§ 273.102 How will revision or
amendments be made to this part?
Prior to making any substantive
revisions or amendments to this part,
the Secretary will consult with Indian
Tribes and national and regional Indian
organizations to the extent practicable
about the need for revision or
amendment and will consider their
views in preparing the proposed
revision or amendment. Nothing in this
section precludes Indian Tribes or
national or regional Indian
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organizations from initiating a request
for revisions or amendments.
§ 273.103 What is the Secretary’s policy of
maximum Indian participation?
The meaningful participation in all
aspects of educational program
development and implementation by
those affected by such programs is an
essential requisite for success. Such
participation not only enhances
program responsiveness to the needs of
those served, but also provides them
with the opportunity to determine and
affect the desired level of educational
achievement and satisfaction which
education can and should provide.
Consistent with this concept, maximum
Indian participation in the
development, approval, and
implementation of all programs
contracted under this part is required.
§ 273.104 How will the Secretary extend
geographic coverage and enhance
participation under the Johnson-O’Malley
Act?
The Secretary will, to the extent
practicable, and subject to the
availability of appropriations, ensure
full geographic coverage and the full
participation of all federally recognized
Tribes and school districts, regardless of
whether the school districts had entered
into a contract under the JohnsonO’Malley Act before fiscal year 1995.
§ 273.105 How do these regulations affect
existing Tribal rights?
Nothing in these regulations may be
construed as:
(a) Affecting, modifying, diminishing,
or otherwise impairing the sovereign
immunity from suit enjoyed by an
Indian Tribe;
(b) Authorizing or requiring the
termination, waiving, modifying, or
reducing of any existing trust
responsibility of the United States with
respect to the Indian people;
(c) Permitting significant reduction in
services to Indian people as a result of
this part; or
(d) Mandating an Indian Tribe to
request a contract or contracts. Such
requests are strictly voluntary.
§ 273.106
know?
What key terms do I need to
Terms used in this part:
Academic year means the period of
the year during which students attend
an educational institution.
Appeal means a request for an
administrative review of an adverse
Agency decision.
Approving official means the Regional
Director, or Agency Superintendents
(for Tribes assigned under their
management), has the responsibility and
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duties to review, approve or decline the
contract in accordance with the Act.
Awarding official means any person
who by appointment or delegation in
accordance with applicable regulations
has the authority to enter into and
administer contracts on behalf of the
United States of America and make
determinations and findings with
respect thereto. Pursuant to the Act, this
person can be any Federal official,
including but not limited to, contracting
officers or awarding official technical
representatives.
Bureau means the Bureau of Indian
Education or Bureau of Indian Affairs,
as applicable.
Calendar year means the period of
365 days (or 366 days in leap years)
starting from January 1.
Capital outlay means money spent to
acquire, maintain, repair, or upgrade
capital asset. Capital assets, also known
as fixed assets, may include machinery,
land, facilities, or other business
necessities that are not expended during
normal use.
Contract means to transfer the funds
in support of the efforts designed to
meet the specialized and unique
educational needs of Indian students in
the Johnson-O’Malley program from the
Federal Government to the contractor.
Contracting party means an entity that
has a contract through a program
authorized under the Johnson-O’Malley
Act.
Contractor means any Tribal
organization, State, school district, or
Indian corporation to which a contract
has been awarded.
Days means calendar days; except
where a date specified in these
regulations falls on a Saturday, Sunday,
or a Federal holiday, the period will
carry over to the next business day.
Debt retirement means the act of
paying off debt completely to a lender.
Director means the Director of the
Bureau of Indian Education or Bureau of
Indian Affairs, as applicable.
Economic enterprise means any
commercial, industrial, agricultural, or
business activity that is at least 51
percent Indian owned, established or
organized for the purpose of profit.
Education plan means a
comprehensive plan for the
programmatic and fiscal services of and
accountability by a contractor for the
education of eligible Indian students.
Eligible entity means a Tribal
organization, State, public school
district, or Indian corporation is eligible
to request a contract for a supplemental
or operational support program under
this Act. For purposes of this part,
previously private schools are
considered Tribal organizations.
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Existing contracting party means a
contracting party that has a contract
under this Act that is in effect on the
date of the JOM Modernization Act
(Pub. L. 115–404), enacted December 31,
2018.
Fiscal year means the period used by
the Bureau for accounting and budget
purposes. The Bureau’s fiscal year
begins October 1 and ends September
30.
Indian means a person who is a
member of an Indian Tribe.
Indian Advisory School Board means
an Indian advisory school board
established pursuant to 25 U.S.C. 5342–
5347 prior to January 4, 1975.
Indian corporation means a legally
established organization of Indians
chartered under State or Federal law
and which is not included within the
definition of ‘‘Tribal organization’’.
Indian Education Committee means
one of the entities specified by
§ 273.115.
Indian Tribe means any Indian Tribe,
band, nation, rancheria, pueblo, colony
or community, including any Alaska
Native village or regional or village
corporation as defined in or established
pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688) which is
federally recognized as eligible by the
U.S. Government through the Secretary
for the special programs and services
provided by the Secretary to Indians
because of their status as Indians.
Initial contract proposal and contract
proposal means a proposal for
education contracts under the JohnsonO’Malley Act for the purpose of
financially assisting those efforts
designed to meet the specialized and
unique educational needs of eligible
Indian students, including programs
supplemental to the regular school
program and school operational
support, where such support is
necessary to maintain established State
educational standards.
Johnson-O’Malley Act means the Act
of April 16, 1934 (48 Stat. 596), as
amended by the Act of June 4, 1936 (49
Stat. 1458, 25 U.S.C. 452–456), and by
the Act of January 4, 1975 (88 Stat.
2203), and further amended by the
Johnson-O’Malley Supplemental Indian
Education Program Modernization Act
(Pub. L. 115–404), enacted December 31,
2018 (JOM Modernization Act).
Local Indian Committee means any
committee established pursuant to 20
U.S.C. 7424(c)(4), which provides that
the committee may be composed of and
selected by parents and family member
of Indian children; representatives of
Indian Tribes or Indian lands; teachers
in the schools; and if appropriate,
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Indian students attending secondary
schools.
New contracting party means an
entity that enters into a contract under
this Act after the date of enactment of
the JOM Modernization Act (Pub. L.
115–404), enacted December 31, 2018.
Operational support means those
expenditures for school operational
costs in order to meet established State
educational standards or Statewide
requirements and as specified in
§ 273.126.
Previously private school means a
school (other than a Federal school
formerly operated by the Bureau) that is
operated primarily for Indian students
from age 3 years through grades 12; and,
which at the time of application is
controlled, sanctioned, or chartered by
the government body(s) of an Indian
Tribe(s).
Public school district means a school
district that (a) serves public elementary
schools or public secondary schools;
and (b) has established or will establish
local committees or is using a
committee or Indian advisory school
board to approve supplementary or
operational support programs beneficial
to Indian students.
Regional Director means the Bureau of
Indian Affairs Regional Director or
Bureau of Indian Education Associate
Deputy Director, as applicable.
Reservation or Indian reservation
means any Indian Tribe’s reservation,
pueblo, colony, or rancheria, including
former reservations in Oklahoma,
Alaska Natives regions established
pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and
Indian allotments.
School district or local education
agency means that subdivision of the
State which contains the public
elementary and secondary educational
institutions providing educational
services and is controlled by a duly
elected board, commission, or similarly
constituted assembly.
Scope of work means a framework
document that will outline the work
that will be performed under a contract
and detail the expectations for the
Johnson-O’Malley program.
Secretary means the Secretary of the
Interior.
State means each of the 50 States, the
District of Columbia, the
Commonwealth of Puerto Rico and each
of the outlying areas, or any political
subdivision of the 50 States.
School official or school
administrator means a person employed
by the school in an administration,
supervisory, academic, or support staff
position.
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Supplemental program means a
program designed to meet the
specialized and unique educational
needs of eligible Indian students that
may have resulted from socio-economic
conditions of the parents, from cultural
or language differences or other factors.
Programs may also provide academic
assistance to Indian students for the
improvement of student learning,
increase the quality of instruction, and
as provided by § 273.143(b).
System of record means a system of
record that contains information that is
retrieved by an individual name or other
unique identifiers.
Tribal government, Tribal governing
body and Tribal Council means the
recognized governing body of an Indian
Tribe.
Tribal organization means the
recognized governing body of any
Indian Tribe or any legally established
organization of Indians or Tribes which
is controlled, sanctioned, or chartered
by such governing body or bodies, or
which is democratically elected by the
adult members of the Indian community
to be served by such organization and
which includes the maximum
participation of Indians in all phases of
its activities.
Subpart B—Program Eligibility &
Applicability
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§ 273.110 Who is eligible to request
contracts under the Johnson-O’Malley Act?
The following entities are eligible to
enter into an education contract under
the Johnson-O’Malley Act for the
purpose of financially assisting efforts
designed to meet the specialized and
unique educational needs of eligible
Indian students, including
supplemental programs and school
operational support, where such
support is necessary to maintain
established State educational standards:
(a) Tribal organizations;
(b) States;
(c) Public school districts that:
(1) Serve public elementary schools or
public secondary schools; and
(2) Have a local school board
composed of a majority of Indians or
have established or will establish an
Indian Education Committee, as
described in § 273.115 to approve
supplementary or operational support
programs beneficial to Indian students;
and
(d) Indian corporations.
§ 273.111 How do the requirements for
Tribal organizations differ from those for
other eligible entities?
(a) States, public school districts, or
Indian corporations must comply with
the requirements in this part.
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(b) The requirements of this part
apply to Tribal organizations, except
that Tribal organizations do not need to
comply with:
(1) § 273.113, regarding how funds
can be used under the Johnson O’Malley
Act;
(2) §§ 273.120–273.121, regarding
approval of an education plan by the
Director;
(3) § 273.125, regarding entering into
a contract as a new contracting party;
(4) §§ 273.132–273.135, regarding
review, approval, and negotiation of the
contract;
(5) § 273.142, regarding advance
payments;
(6) Any section in subpart H—General
Contract Requirements (other than the
following sections, which still apply:
§ 273.170, regarding special program
provisions to be included in a contract,
§ 273.172, regarding State employees’
access to Tribal lands, reservations or
allotments, and § 273.182, regarding
penalties for misusing funds or
property);
(7) Any section in subpart I—Contract
Renewal, Revisions, and Cancellations
(other than § 273.194, regarding the
Indian Education Committee’s authority
to revoke contracts, which still applies);
(8) Any section in Subpart K—
Appeals (other than § 273.208).
(c) The contract proposal submitted
by the Tribal organization must meet the
requirements in part 900 of this chapter,
in addition to those in § 273.130. The
requirements in part 900 of this chapter
apply to contracts with Tribal
organizations, except for the provisions
in §§ 900.240 through 900.256 of this
chapter concerning retrocession and
reassumption of programs. If a Tribal
organization retrocedes a contract, the
Bureau will then contract with a State,
public school district, or Indian
corporation for the supplemental
programs or operational support.
§ 273.112 Who is an eligible Indian student
under the Johnson-O’Malley Act?
An Indian student is eligible for
benefits provided by a Johnson
O’Malley contract if the student is:
(a) From age three (3) years through
grade(s) twelve (12);
(b) Is not enrolled in a Bureau or
sectarian operated school; and
(c) Is either:
(1) At least one-fourth (1⁄4) degree
Indian blood descendant of a member of
a federally recognized Indian Tribe; or
(2) A member of a federally
recognized Tribe.
§ 273.113 How can the funds be used
under the Johnson-O’Malley Act?
An eligible entity may use the funds
available under the contract to provide
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educational benefits to eligible Indian
students to:
(a) Carry out programs or expand
programs in existence before the
contract period that provide:
(1) Remedial instruction, counseling,
and cultural programs;
(2) Selected courses related to the
academic and professional disciplines;
or
(3) Important needs, such as school
supplies and items that enable
recipients to participate in curricular
and extra-curricular programs;
(b) Establish targeted and culturally
sensitive dropout prevention activities;
and
(c) Purchase equipment to facilitate
training for professional trade skills and
intensified college preparation
programs.
§ 273.114 What programs may be
contracted under the Johnson-O’Malley
Act?
All programs contracted under this
part must:
(a) Be developed and approved in full
compliance with the powers and duties
of the Indian Education Committee and
as may be contained in the Committee’s
organizational documents and bylaws.
(b) Be included as a part of the
education plan.
Subpart C—Indian Education
Committee
§ 273.115 Who determines the unique
educational needs of eligible Indian
students?
When a school district to be affected
by a contract(s) for the education of
Indians has a local school board
composed of a majority of Indians, the
local school board may act as the Indian
Education Committee; otherwise, the
parents of Indian children may elect an
Indian Education Committee from
among their number or a Tribal
governing body(ies) of the Indian
Tribe(s) affected by the contract(s) may
specify one of the following entities to
serve as the Indian Education
Committee:
(a) A Local Indian Committee or
Committees; or
(b) An Indian Advisory School Board
or Boards.
§ 273.116 Does an Indian Education
Committee need to establish procedures
and report to the Regional Director?
The Indian Education Committee and
its members must establish procedures
under which the Committee serves.
Such procedures must be set forth in the
Committee’s organizational documents
and by-laws.
(a) Each Committee must file a copy
of its organizational documents and by-
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laws with the Regional Director,
together with a list of its officers and
members.
(b) The existence of an Indian
Education Committee may not limit the
continuing participation of the rest of
the Indian community in all aspects of
programs contracted under this part.
§ 273.117 What are the powers and duties
of the Indian Education Committee?
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Consistent with the purpose of the
Indian Education Committee, each such
Committee is vested with the authority
to undertake the activities in paragraphs
(a) through (d) of this section.
(a) Participate fully in the planning,
development, implementation, and
evaluation of all programs, including
both supplemental and operational
support, conducted under a contract or
contracts pursuant to this part. Such
participation includes further authority
to:
(1) Recommend curricula, including
texts, materials, and teaching methods
to be used in the contracted program or
programs;
(2) Approve budget preparation and
execution;
(3) Recommend criteria for
employment in the program;
(4) Nominate a reasonable number of
qualified prospective educational
programmatic staff members from which
the contractor would be required to
select; and
(5) Evaluate staff performance and
program results and recommend
appropriate action to the contractor.
(b) Approve and disapprove all
programs to be contracted under this
part. All programs contracted require
the prior approval of the appropriate
Indian Education Committee.
(c) Secure a copy of the negotiated
contract(s) that includes the program(s)
approved by the Indian Education
Committee.
(d) Recommend to the Director
through the appropriate awarding
official cancellation or suspension of a
contract(s) that contains the program(s)
approved by the Indian Education
Committee if the contractor fails to
permit the Committee to exercise its
powers and duties.
§ 273.118 Are there additional authorities
an Indian Education Committee can
exercise?
The organizational papers and bylaws of the Indian Education Committee
may include additional powers and
duties that would permit the Committee
to:
(a) Participate in negotiations
concerning all contracts;
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(b) Make an annual assessment of the
learning needs of Indian children in the
community affected;
(c) Have access to all reports,
evaluations, surveys, and other program
and budget related documents
determined necessary by the Committee
to carry out its responsibilities, subject
only to the provisions of § 273.180;
(d) Request periodic reports and
evaluations regarding the Indian
education program;
(e) Establish a local grievance policy
and procedures related to programs in
the education plan;
(f) Meet regularly with the
professional staff serving Indian
children and with the local education
agency;
(g) Hold committee meetings on a
regular basis which are open to the
public; and
(h) Have such additional powers as
are consistent with these regulations.
Subpart D—Education Plan
§ 273.119 What is an education plan and
what must it include?
A prospective contractor in
consultation with its Indian Education
Committee(s) must formulate an
education plan that contains
educational objectives that adequately
address the educational needs of the
Indian students and assures that the
contract is capable of meeting such
objectives. The education plan must
contain:
(a) The education programs developed
and approved by the Indian Education
Committee(s);
(b) Educational goals and objectives
that adequately address the educational
needs of the Indian students to be
served by the contract;
(c) Procedures for addressing hearing
grievances from Indian students,
parents, guardians, community
members, and Tribal representatives
relating to the program(s) contracted.
Such procedures must provide for
adequate advance notice of the hearing;
(d) Established State standards and
requirements that must be maintained
in operating the contracted programs
and services;
(e) A description of how the State
standards and requirements will be
maintained;
(f) A requirement that the contractor
comply in full with the requirements
concerning meaningful participation by
the Indian Education Committee;
(g) A requirement that education
facilities receiving funds be open to
visits and consultations by the Indian
Education Committee(s), Tribal
representatives, Indian parents and
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guardians in the community, and by
duly authorized representatives of the
Federal and State Governments;
(h) An outline of administrative and
fiscal management procedures to be
used by the contractor;
(i) Justification for requesting funds
for operational support. The public
school district must establish in its
justification that it meets the
requirements given in § 273.126(b). The
information given should include
records of receipt of local, State, and
Federal funds;
(j) Budget estimates and financial
information needed to determine
program costs to contract for services.
This includes, but is not limited to, the
following:
(1) State and district average
operational cost per pupil;
(2) Other sources of Federal funding
the applicant is receiving, the amount
received from each, the programs being
funded, and the number of eligible
Indian students served by such funding;
(3) Administrative costs involved,
total number of employees, and total
number of Indian employees;
(4) Costs that parents normally are
expected to pay for each school;
(5) Supplemental and operational
funds outlined in a separate budget, by
line item, to facilitate accountability;
and
(6) Total number of employees for
each special program and number of
Indian employees for that program;
(k) The total enrollment of school or
district, by age and grade level;
(l) The eligible Indian enrollment—
total and classification by Tribal
affiliation(s) and by age and grade level;
(m) The total number of school board
members and number of Indian school
board members;
(n) Government equipment needed to
carry out the contract;
(o) The period of contract term
requested;
(p) The signature of the authorized
representative of applicant; and
(q) Written information regarding:
(1) Program goals and objectives
related to the learning needs of potential
target students;
(2) Procedures and methods to be
used in achieving program objectives,
including ways whereby parents,
students and communities have been
involved in determining needs and
priorities;
(3) Overall program implementation
including staffing practices, parental
and community involvement,
evaluation of program results, and
dissemination thereof; and
(4) Determination of staff and program
effectiveness in meeting the stated
needs of target students.
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§ 273.120 Does an education plan need to
be approved by the Regional Director?
The Secretary will not enter into any
contract for the education of Indians
unless:
(a) The contractor has submitted an
education plan to the Regional Director;
and
(b) The Regional Director has
determined that the education plan
contains educational objectives that
adequately address the educational
needs of the Indian students who are to
be beneficiaries of the contract, and that
the contract is capable of meeting such
objectives.
§ 273.121 When does the Regional
Director approve the education plan?
The Regional Director approves the
education plan when a contractor
submits a contract proposal for funding.
Subpart E—Contract Proposal, Review,
and Approval
§ 273.125 How may a new contracting
party request a contract under the JohnsonO’Malley Act?
Subject to the availability of
appropriations, eligible entities who
have not previously entered into a
contract for the Johnson-O’Malley
program may submit an initial contract
proposal.
jspears on DSK30JT082PROD with PROPOSALS
§ 273.126 What proposals are eligible for
contracts under the Johnson-O’Malley Act?
(a) Any proposal to contract for
funding a supplemental program will be
considered an eligible proposal.
(b)(1) To contract for operational
support, a public school district is
required to establish in the proposal that
it:
(i) Cannot meet the applicable
minimum State standards or
requirements without such funds;
(ii) Has made a reasonable tax effort
with a mill levy at least equal to the
State average in support of educational
programs;
(iii) Has fully utilized all other
sources of financial aid, including all
forms of State aid and Public Law 874
payments, and the State aid
contribution per pupil is at least equal
to the State average;
(iv) Has at least 70 percent eligible
Indian enrollment;
(v) Has clearly identified the
educational needs of the students
intended to benefit from the contract;
(vi) Has made a good faith effort in
computing State and local contributions
without regard to contract funds
pursuant to this part; and
(vii) Will not budget or project a
deficit by using contract funds pursuant
to this part.
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(2) The requirements given in
paragraph (b)(1) of this section do not
apply to previously private schools.
(g) Documentation of the
requirements for operational support in
§ 273.126(b)(1).
§ 273.127 Can a contract include funds to
support the duties of an Indian Education
Committee?
§ 273.131 What is required for a Tribal
request for a contract?
Programs developed or approved by
the Indian Education Committee may, at
the option of such Committee, include
funds for the performance of Committee
duties to include:
(a) Members’ attendance at regular
and special meetings, workshops and
training sessions, as the Committee
deems appropriate.
(b) Other reasonable expenses
incurred by the Committee in
performing its primary duties, including
the planning, development,
implementation and evaluation of the
program.
§ 273.128
How are contracts prioritized?
Priority will be given to contracts:
(a) Which would serve Indian
students on or near reservations; and
(b) Where a majority of the Indian
students will be members of the Tribe(s)
of those reservations.
§ 273.129 May the Regional Director
reimburse a public school district for
educating non-resident Indian students?
The Regional Director may consider a
contract proposal to reimburse a public
school district for the full per capita
costs of educating Indian students who
meet all of the following:
(a) Are members of recognized Indian
Tribes;
(b) Do not normally reside in the State
in which the school district is located;
and
(c) Are residing in Federal boarding
facilities for the purpose of attending
public schools within the school
district.
§ 273.130 What is required in the contract
proposal for funding?
A contract proposal must be in
writing and contain the following:
(a) Name, address, and telephone
number of the proposed contractor;
(b) Name, address, and telephone
number of the Tribe(s) to be served by
the contract;
(c) Descriptive narrative of the
contract proposal;
(d) The education plan approved by
the Indian Education Committee;
(e) A separate budget outlining the
Johnson-O’Malley funds for operational
support and/or supplemental programs,
by line item, to facilitate accountability;
(f) A clear identification of what
educational needs the Johnson-O’Malley
funds requested for operational support
will address; and
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(a) An Indian Tribal governing body
that desires that a contract be entered
into with a Tribal organization must
notify the Regional Director.
(b) The Tribal governing body has the
option to contract with the State, public
school district, or Indian corporation.
§ 273.132 Who will review and approve the
contract proposal?
Each approving official within each
Bureau Region is authorized to approve
the contract(s) submitted by the State,
public school district, or Indian
corporation to provide services to
Indian children within that approving
official’s region.
§ 273.133 What is the process for review
and decision?
Upon receiving a contract proposal,
the approving official will:
(a) Notify the applicant in writing that
the contract proposal has been received,
within 14 days after receiving the
contract proposal.
(b) Review the contract proposal for
completeness and request, within 20
days after receiving the contract
proposal, any additional information
from the applicant which will be
needed to reach a decision.
(c) On receiving the contract proposal
for operational support, make a formal
written determination and findings
supporting the need for such funds. In
arriving at such a determination, the
approving official must be assured that
each local education agency has made a
good faith effort in computing State and
local contributions without regard to
funds requested.
(d) Assess the completed contract
proposal to determine if the proposal is
feasible and if the proposal complies
with the appropriate requirements of the
Johnson-O’Malley Act and this part.
(e) Approve or disapprove the
contract proposal after fully reviewing
and assessing the application and any
additional information submitted by the
applicant.
(f) Promptly notify the applicant in
writing of the decision to approve or
disapprove the contract proposal.
(g) If the contract proposal is
disapproved, the notice will give the
reasons for disapproval and the
applicant’s right to appeal pursuant to
Subpart K of this part.
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§ 273.134 What is the timeframe for
contract decision?
The approving official will approve or
disapprove the contract proposal within
90 days after the approving official
receives the contract proposal and any
additional information requested. The
approving official may extend the 90day deadline after obtaining the written
consent of the applicant.
§ 273.135
Who will negotiate the contract?
After the approving official has
approved the contract proposal, the
awarding official, assisted by Bureau
education personnel, will negotiate the
contract.
Subpart F—Funding Provisions
jspears on DSK30JT082PROD with PROPOSALS
§ 273.140 What is the funding formula to
distribute funds?
Funds will be distributed to
contractors based upon a funding
formula. The funding formula is
calculated using data obtained by the
Department of Education from the
previous year.
(a) The funding formula to determine
the funding to be distributed to each
contractor is the Weight Factor
multiplied by the number of eligible
Indian students, where the Weight
Factor is:
(1) The State average cost per pupil
count divided by the national average
cost per pupil count; or
(2) A default weight factor of 1.3, if
the calculation in paragraph (a)(1) of
this section results in a weight factor of
less than 1.3.
(b) Notwithstanding any other
provisions of the law, Federal funds
appropriated for the purpose will be
allotted pro rata in accordance with the
distribution method outlined in this
formula.
(c) For four fiscal years following the
date of enactment of the JOM
Modernization Act (December 31, 2018):
(1) Existing contractors will not
receive an amount that is less than the
amount received for Fiscal Year 2017
(the fiscal year preceding the date of
enactment of the JOM Modernization
Act), unless:
(i) The existing contractor fails to
submit a complete annual report;
(ii) The Secretary has found that the
existing contractor has violated the
terms of a contract under this part; or
(iii) The number of eligible students
reported in the annual report has
decreased below the number of eligible
students served by the existing
contractor in Fiscal Year 2017 (the fiscal
year preceding the date of enactment of
the JOM Modernization Act). (2)
Paragraph (c)(1)(iii) of this section
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notwithstanding, no existing contractor
will receive an amount of funding per
eligible student that is less than the
amount of funding per eligible Indian
student that the existing contractor
received for Fiscal Year 2017 (the fiscal
year preceding the enactment of the
JOM Modernization Act).
(d) Beginning December 31, 2022 (4
years after the December 31, 2018, date
of enactment of the JOM Modernization
Act), no contracting party will receive
for a fiscal year more than a 10 percent
decrease in funding per eligible Indian
student from the previous year.
§ 273.141
Will funding be prorated?
All monies provided by a contract
may be expended only for the benefit of
eligible Indian students. Where students
other than eligible Indian students
participate in programs contracted,
money expended under the contract
will be prorated to cover the
participation of only the eligible Indian
students, except where the participation
of non-eligible students is so incidental
as to be de minimis. Such de minimis
participation must be approved by the
Indian Education Committee.
§ 273.142 Are advance payments on a
contract allowed under the JohnsonO’Malley Act?
Payments to States, public school
districts and Indian corporations will be
made in advance or by way of
reimbursement and in such installments
and on such conditions as the Regional
Director deems necessary to carry out
the purposes of the Act.
§ 273.143 Must other Federal, State and
local funds be used?
(a) Contract funds under this part
supplement, and do not supplant,
Federal, State and local funds. Each
contract must require that the use of
these contract funds will not result in a
decrease in State, local, or Federal funds
that would be made available for Indian
students if there were no funds under
this part.
(b) State, local and other Federal
funds must be used to provide
comparable services to non-Indian and
Indian students prior to the use of
contract funds.
(c) Except as hereinafter provided, the
school lunch program of the United
States Department of Agriculture
(USDA) constitutes the only federally
funded school lunch program for Indian
students in public schools. Where
Indian students do not qualify to receive
free lunches under the National School
Lunch Program of USDA because such
students are non-needy and do not meet
the family size and income guidelines
for free USDA lunches, plans prepared
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pursuant to § 273.119 may provide, to
the extent of funding available for
Johnson-O’Malley programs, for free
school lunches for those students who
do not qualify for free USDA lunches
but who are eligible students under
§ 273.112.
§ 273.144 Can Johnson-O’Malley funds be
used for capital outlay or debt retirement?
In no instance may contract funds
provided under this part be used as
payment for capital outlay or debt
retirement expenses; except that, such
costs are allowable if they are
considered to be a part of the full per
capita cost of educating eligible Indian
students who reside in Federal boarding
facilities for the purpose of attending
public schools.
§ 273.145 How can funds be used for
subcontractors?
The Bureau may make contract funds
under the Johnson-O’Malley Act
available directly only to Tribal
organizations, States, public school
districts, and Indian corporations.
However, Tribal organizations, States,
public school districts, and Indian
corporations receiving funds may use
the funds to subcontract for necessary
services with any appropriate
individual, organization, or corporation.
§ 273.146 Can funds be used outside of
schools?
Nothing in this part prevents the
Regional Director from contracting with
Indian corporations who will expend all
or part of the funds in places other than
the public or private schools in the
community affected.
§ 273.147 Are there requirements of equal
quality and standard of education?
Contracts with State education
agencies or public school districts
receiving funds must provide
educational opportunities to all Indian
children within that school district on
the same terms and under the same
conditions that apply to all other
students as long as it will not affect the
rights of eligible Indian children to
receive benefits from the supplemental
programs. Public school districts
receiving funds must ensure that Indian
children receive all aid from the State,
and proper sources other than the
Johnson-O’Malley contract, which other
schools in the district and other school
districts similarly situated in the State
are entitled to receive. In no instance
may there be discrimination against
Indians or the schools enrolling Indians.
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(a) Initial and final reporting
deadlines; and
(b) The consequences of failure to
comply.
Subpart G—Annual Reporting
Requirements
§ 273.150 Does an existing contracting
party need to submit any reports?
Each existing contracting party must
submit an annual report based on the
JOM funding received and other
contract-related reports as required by
the Regional Director.
§ 273.151 What information must the
existing contracting party provide in the
annual report?
Existing contracting parties who
receive Johnson-O’Malley funding must
submit the following information in the
annual report:
(a) General information about the
contractor;
(b) General information about the
number and names of the schools;
(c) The number of eligible Indian
students who were served using
amounts allocated under the contract
during the previous fiscal year;
(d) An accounting of the amounts and
purposes for which the contract funds
were expended;
(e) Information on the conduct of the
program;
(f) A quantitative evaluation of the
effectiveness of the contract program in
meeting the stated objectives contained
in the educational plans; and
(g) A complete accounting of actual
receipts at the end of the fiscal year for
which the contract funds were
expended.
§ 273.152
When is the annual report due?
All existing contracting parties must
submit the annual report to the
awarding official on or before
September 15 of each year and covering
the previous academic year.
§ 273.153 Who else needs a copy of the
annual report?
All existing contracting parties must
send copies of the annual reports to the
Indian Education Committee(s) and to
the Tribe(s) under the contract at the
same time as the reports are sent to the
awarding official.
jspears on DSK30JT082PROD with PROPOSALS
§ 273.154 What will happen if the existing
contracting party fails to submit an annual
report?
Any existing contracting party that
fails to submit the annual report will
receive no amounts under this Act for
the fiscal year following the academic
year for which the annual report should
have been submitted.
§ 273.155 How will the existing contracting
party know when reports are due?
The awarding official will provide
existing contracting parties with timely
information relating to:
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§ 273.156 Will technical assistance be
available to comply with the annual
reporting requirements?
The Bureau will provide technical
assistance and training on compliance
with the reporting requirements to
existing contracting parties. The Bureau
will provide such technical assistance
and training on an ongoing and timely
basis.
§ 273.157 What is the process for
requesting technical assistance and/or
training?
(a) Existing contracting parties may
request technical assistance and/or
training by addressing the request in
writing to the Regional Director.
(b) The Regional Director, or designee,
will acknowledge receipt of a request for
technical assistance and/or training.
(c) No later than 30 days after
receiving the original request, the
Regional Director will identify a point of
contact and begin the process of
providing technical assistance and/or
training. The Regional Director and
requesting contracting party will work
together to identify the form, substance,
and timeline for the assistance.
§ 273.158 When should the existing
contracting party request technical
assistance and/or training?
The existing contracting party is
encouraged to request technical
assistance and/or training before annual
reporting requirements are due in order
to avoid the consequences for failure to
comply.
§ 273.159 If the existing contracting party
reported a decrease of eligible Indian
students, how will funding be reduced?
Except as provided in § 273.140(c)–(d)
of this part, for four fiscal years
following the date of enactment of the
JOM Modernization Act (December 31,
2018) an existing contracting party’s
funding will not be reduced to a level
that is less than the amount of funding
per eligible Indian student that the
existing contracting party received for
Fiscal Year 2017 (the fiscal year
preceding the date of enactment of the
Johnson-O’Malley Modernization Act).
§ 273.160 Can the Secretary apply a
ratable reduction in Johnson-O’Malley
program funding?
If the funds available under the
Johnson-O’Malley Act for a fiscal year
are insufficient to pay the full amounts
that all existing contracting parties are
eligible to receive under for the fiscal
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year, the Secretary will ratably reduce
those amounts for the fiscal year.
§ 273.161 What is the maximum decrease
in funding allowed?
Beginning December 31, 2022 (4 years
after the December 31, 2018, date of
enactment of the JOM Modernization
Act), no contracting party may receive
for a fiscal year more than a 10 percent
decrease in funding per eligible Indian
student from the previous fiscal year.
Subpart H—General Contract
Requirements
§ 273.170 What special program
provisions must be included in the
contract?
All contracts must contain the
following:
(a) The education plan approved by
the Indian Education Committee(s);
(b) Any formal written determination
and findings made by the Regional
Director supporting the need for
operational support as required by
§ 273.133(c); and
(c) A provision that State, local, and
other Federal Funds will be used to
provide comparable services to nonIndian and Indian students prior to the
use of Johnson-O’Malley funds for the
provision of supplementary program
services to Indian children, as required
in § 273.143(b).
§ 273.171 Can a contractor make changes
to a program approved by an Indian
Education Committee?
No program contracted may be
changed from the time of its original
approval by the Indian Education
Committee to the end of the contract
period without the prior approval, in
writing, of the Indian Education
Committee.
§ 273.172 May State employees enter
Tribal lands, reservations or allotments?
In those States where Public Law 83–
280 (18 U.S.C. 1162 and 28 U.S.C. 1360)
do not confer civil jurisdiction, State
employees may be permitted to enter
upon Indian Tribal lands, reservations,
or allotments in an official capacity in
connection with a contract under this
part if the duly constituted governing
body of the Tribe adopts a resolution of
consent for the following purposes:
(a) Inspecting school conditions in the
public schools located on Indian Tribal
lands, reservations, or allotments; or
(b) Enforcing State compulsory school
attendance laws against Indian children,
parents or persons standing in loco
parentis.
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§ 273.173 What procurement requirements
apply to contracts?
States, public school districts, or
Indian corporations wanting to contract
with the Bureau must comply with the
applicable requirements in the Federal
Acquisition Regulations at 48 CFR part
1.
§ 273.174 Are there any Indian preference
requirements for contracts and
subcontracts?
(a) Any contract made with a State,
public school district, or Indian
corporation for the benefit of Indian
students must require that the
contractor, to the greatest extent
feasible:
(1) Give preference in and
opportunities for employment and
training to Indians in connection with
the administration of such contract(s);
and
(2) Give preference in the award of
subcontracts to Indian organizations and
Indian-owned economic enterprises.
(b) All subcontractors employed by
the contractor must, to the extent
possible, give preference to Indians for
employment and training and must
include in their bid submission a plan
to achieve maximum use of Indian
personnel.
§ 273.175 How will a Tribal governing body
apply Indian preference requirements for
contracts and subcontracts?
A Tribal governing body may develop
its own Indian preference requirements
for its contracts and subcontracts.
jspears on DSK30JT082PROD with PROPOSALS
§ 273.176 May there be a use and transfer
of Government property?
(a) The use of Government-owned
facilities for school purposes may be
authorized when not needed for
Government activities. Transfer of title
to such facilities (except land) may be
arranged under the provisions of the Act
of June 4, 1953 (67 Stat. 41) subject to
the approval of the Tribal government if
such property is located on a
reservation.
(b) In carrying out a contract, the
Regional Director may, with the
approval of the Tribal government,
permit a contractor to use existing
buildings, facilities, and related
equipment and other personal property
owned by the Bureau within its
jurisdiction under terms and conditions
agreed upon for their use and
maintenance. The property at the time
of transfer must conform to the
minimum standards established by the
Occupational Safety and Health Act of
1970 (84 Stat. 1590), as amended (29
U.S.C. 651). Use of Government
property is subject to the following
conditions:
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(1) When nonexpendable Government
property is turned over to public school
authorities or Indian corporations under
a use permit, the permittee must insure
such property against damage by flood,
fire, rain, windstorm, vandalism, snow,
and tornado in amounts and with
companies satisfactory to the Federal
officer in charge of the property. In case
of damage or destruction of the property
by flood, fire, rain, windstorm,
vandalism, snow, or tornado, the
insurance money collected may be
expended only for repair or replacement
of property. Otherwise, insurance
proceeds must be paid to the Bureau.
(2) If the public school authority is
self-insured and can present evidence of
that fact to the Regional Director,
insurance for lost or damaged property
will not be required. However, the
public school authority will be
responsible for replacement of such lost
or damaged property at no cost to the
Government or for paying the
Government enough to replace the
property.
(3) The permittee will maintain the
property in a reasonable state of repair
consistent with the intended use and
educational purposes.
(c) The contractor may have access to
existing Bureau records needed to carry
out a contract under this part, as
follows:
(1) The Bureau will make the records
available subject to the provisions of the
Freedom of Information Act (5 U.S.C.
552), as amended by the Act of
November 21, 1974 (Pub. L. 93–502, 88
Stat. 1561).
(2) The contractor may have access to
needed Bureau records at the
appropriate Bureau office for review and
making copies of selected records.
(3) If the contractor needs a small
volume of identifiable Bureau records,
the Bureau will furnish the copies to the
contractor.
§ 273.177 Who will provide liability and
motor vehicle insurance?
(a) States, school districts, and Indian
corporations must obtain public liability
insurance under contracts entered into
with the Bureau, unless the Bureau
approving official determines that the
risk of death, personal injury or
property damage under the contract is
small and that the time and cost of
procuring the insurance is great in
relation to the risk.
(b) Notwithstanding paragraph (a) of
this section, any contract which requires
or authorizes, either expressly or by
implication, the use of motor vehicles
must contain a provision requiring the
State, school district, or Indian
corporation to provide liability
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insurance, regardless of how small the
risk.
(c) If the public school authority is
self-insured and can present evidence of
that fact to the approving official,
liability and motor vehicle insurance
will not be required.
§ 273.178 Are there contract
recordkeeping requirements?
A contractor will be required to
maintain a recordkeeping system that
allows the Bureau to meet its legal
records program requirements under the
Federal Records Act (44 U.S.C. 3101 et
seq.). Such a record system must:
(a) Fully reflect all financial
transactions involving the receipt and
expenditure of funds provided under
the contract in a manner that will
provide accurate, current and complete
disclosure of financial status;
correlation with budget or allowable
cost schedules; and clear audit
facilitating data;
(b) Reflect the amounts and sources of
funds other than Bureau contract funds
that may be included in the operation of
the contract;
(c) Provide for the creation,
maintenance, and safeguarding of
records of lasting value, including those
involving individual rights, such as
permanent records and transcripts; and
(d) Provide for the orderly retirement
of permanent records in accordance
with Department Records Schedule
(Bureau of Indian Affairs (075)), when
there is no established system set up by
the State, public school district, or
Indian corporation.
§ 273.179 Are there contract audit and
inspection requirements?
(a) During the term of a contract and
for three (3) years after the project or
undertaking is completed, the Regional
Director, or any duly authorized
representative, must have access, for
audit and examination purposes, to any
of the contractor’s books, documents,
papers, and records that, in the Regional
Director’s or representative’s opinion,
may be related or pertinent to the
contract or any subcontract.
(b) The contractor is responsible for
maintaining invoices, purchase orders,
canceled checks, balance sheets and all
other documents relating to financial
transactions in a manner that will
facilitate auditing. The contractor is
responsible for maintaining files of
correspondence and other documents
relating to the administration of the
contract, properly separated from
general records or cross-referenced to
general files.
(c) The contractor receiving funds is
responsible for contract compliance.
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(d) The records involved in any claim
or expenditure that has been questioned
must be further maintained until a final
determination is made on the
questioned expenditures.
(e) The contractor and local school
officials must make available to each
member of the Indian Education
Committee and to members of the
public upon request: All contracts, nonconfidential records concerning
students served by the program, reports,
budgets, budget estimates, plans, and
other documents pertaining to
administration of the contract program
in the preceding and current years. The
contractor or local school official must
provide, free of charge, single copies of
such documents upon request.
jspears on DSK30JT082PROD with PROPOSALS
§ 273.180 Are there disclosure
requirements for contracts?
(a) Unless otherwise required by law,
the Bureau may not place restrictions on
contractors that will limit public access
to the contractor’s records except when
records must remain confidential.
(b) A contractor must make all reports
and information concerning the contract
available to the Indian people that the
contract affects. Reports and
information may be withheld from
disclosure only when both of the
following conditions exist:
(1) The reports and information fall
within one of the following exempt
categories:
(i) Specifically required by statute or
Executive Order to be kept secret;
(ii) Commercial or financial
information obtained from a person or
firm on a privileged or confidential
basis; or
(iii) Personnel, medical, social,
psychological, academic achievement
and similar files where disclosure
would be a clearly unwarranted
invasion of personal privacy; and
(2) Disclosure is prohibited by statute
or Executive Order or sound grounds
exist for using the exemption given in
paragraph (b)(1) of this section.
(c) A request to inspect or copy
reports and information must be in
writing and reasonably describe the
reports and information requested. The
request may be delivered or mailed to
the contractor. Within 10 working days
after receiving the request, the
contractor must determine whether to
grant or deny the request and
immediately notify the request of the
determination.
(d) The time limit for making a
determination may be extended up to an
additional 10 working days for good
reason. The requester must be notified
in writing of the extension, reasons for
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20:32 Jun 26, 2019
Jkt 247001
the extension, and date on which the
determination is expected to be made.
§ 273.181 Are there Privacy Act
requirements for contracts?
(a) When a contractor operates a
system of records to accomplish a
Bureau function, the contractor must
comply with subpart K of 43 CFR part
2 which implements the Privacy Act (5
U.S.C. 552a). Examples of the
contractor’s responsibilities are:
(1) To continue maintaining systems
of records declared by the Bureau to be
subject to the Privacy Act;
(2) To make such records available to
individuals involved;
(3) To disclose an individual’s record
to third parties only after receiving
permission from the individual to
whom the record pertains, and in
accordance with the exceptions listed in
43 CFR 2.231;
(4) To establish a procedure to
account for access, disclosures, denials,
and amendments to records; and
(5) To provide safeguards for the
protection of the records.
(b) The contractor may not, without
prior approval of the Bureau:
(1) Discontinue or alter any
established systems of records;
(2) Deny requests for notification or
access of records; or
(3) Approve or deny requests for
amendments of records.
(c) The contractor may not establish a
new system of records without prior
approval of the Department of Interior
and the Office of Management and
Budget.
(d) The contractor may not collect
information about an individual unless
it is relevant or necessary to accomplish
a purpose of the Bureau as required by
statute or Executive Order.
(e) The contractor is subject to 5
U.S.C. 552a(i)(1), which imposes
criminal penalties for knowingly and
willfully disclosing a record about an
individual without the written request
or consent of that individual unless
disclosure is permitted under one of the
exceptions.
§ 273.182 Are there penalties for misusing
funds or property?
If any officer, director, agent, or
employee of, or connected with, any
contractor or subcontractor under this
part embezzles, willfully misapplies,
steals, or obtains by fraud any of the
funds or property connected with the
contract or subcontract, he or she will
be subject to the following penalties:
(a) If the amount involved does not
exceed $100, person(s) will be fined not
more than $1,000 or imprisoned not
more than one (1) year, or both.
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
30665
(b) If the amount involved exceeds
$100, person(s) will be fined not more
than $10,000 or imprisoned for not more
than two (2) years, or both.
§ 273.183 Can the Secretary investigate a
potential Civil Rights Act violation?
In no instance may there be
discrimination against Indians or
schools enrolling Indians. When
informed by a complainant or through
its own discovery that a possible
violation of title VI of the Civil Rights
Act of 1964 exists within a State school
district receiving funds, the Secretary
will, in accordance with Federal
requirements, notify the Department of
Education of the possible violation. The
Department Education will conduct an
investigation into the matters alleged. If
the report of the investigation
conducted by the Department of
Education discloses a failure or
threatened failure to comply with this
part, and if the non-compliance cannot
be corrected by informal means,
compliance with this part may be
effected by the suspension or
termination of or refusal to contract or
to continue financial assistance under
the Johnson-O’Malley Act or by any
other means authorized by law.
Subpart I—Contract Renewal,
Revisions, and Cancellations
§ 273.191 How may a contract be renewed
for Johnson-O’Malley funding?
An awarding official will notify the
existing contracting party in advance of
the contract’s expiration and ask if the
existing contracting party wants to
renew the contract. The renewal must
be in writing from the existing
contracting party and the awarding
official.
§ 273.192 What is required to renew a
contract?
(a) The existing contracting party
seeking to renew a contract will submit
to the awarding official:
(1) A written request to renew;
(2) The current education plan
approved by the Indian Education
Committee, if expired;
(3) A new Tribal resolution, if the
current one has expired or its terms do
not address renewal;
(4) A scope of work; and
(5) A budget outlining the JohnsonO’Malley funds for operational support
and/or supplemental programs, by line
item, to facilitate accountability.
(b) The awarding official will send the
existing contracting party an
acknowledgment letter and specify if
any information is required to complete
renewal package.
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(c) The approving official will
approve or disapprove a renewal within
90 days after the approving official
receives the renewal and any additional
information requested. The approving
official may extend the 90-day deadline
after obtaining the written consent of
the existing contracting party.
§ 273.193 May a contract be revised or
amended?
Any contract may be revised or
amended as deemed necessary to carry
out the purposes of the program being
contracted.
(a) A contractor may submit a written
request for a revision or amendment of
a contract to the awarding official.
(b) The written approval of the Indian
Education Committee is required if the
contract revision or amendment will
alter a program that has been approved
by the Indian Education Committee.
§ 273.194 Does the Indian Education
Committee have authority to cancel
contracts?
The Indian Education Committee may
recommend to the Regional Director,
through the appropriate awarding
official, cancellation or suspension of a
contract(s) that contains the program(s)
approved by the Indian Education
Committee, if the contractor fails to
permit such Committee to exercise its
powers and duties.
jspears on DSK30JT082PROD with PROPOSALS
§ 273.195
cause?
May a contract be cancelled for
(a) Any contract may be cancelled for
cause when the contractor fails to
perform the work called for under the
contract or fails to permit an Indian
Education Committee to perform its
duties.
(b) Before cancelling the contract, the
Regional Director will provide the
contractor with written notice,
including:
(1) The reasons why the Bureau is
considering cancelling the contract; and
(2) The contractor will be given an
opportunity to bring its work up to an
acceptable level.
(c) If the contractor does not overcome
the deficiencies in its contract
performance, the Bureau will cancel the
contract for cause. The Bureau will
notify the contractor, in writing, of the
cancellation. The notice will give the
reasons for the cancellation and the
right of the contractor to appeal under
subpart K of this part.
(d) When a contract is cancelled for
cause, the Bureau will attempt to
perform the work by another contract.
(e) Any contractor that has a contract
cancelled for cause must demonstrate
that the cause(s) that led to the
cancellation have been remedied before
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20:32 Jun 26, 2019
Jkt 247001
it will be considered for another
contract.
Subpart J—Responsibility and
Accountability
§ 273.201 What is required for the
Secretary to meet his or her reporting
responsibilities?
(a) The Secretary has the following
reporting responsibilities to the
Committee on Indian Affairs in the
Senate; the Subcommittee on Interior,
Environment, and Related Agencies of
the Committee on Appropriations of the
Senate; the Subcommittee on Indian,
Insular, and Alaska Native Affairs of the
Committee on Natural Resources of the
House of Representatives; and the
Subcommittee on Interior, Environment,
and Related Agencies of the Committee
on Appropriations of the House of
Representatives:
(1) In order to provide information
about the Johnson-O’Malley Program,
the Bureau must obtain from all existing
contracting parties the most recent
determination of the number of eligible
Indian students served by each
contracting party.
(2) The Bureau will make
recommendations on appropriate
funding levels for the program based on
such determination.
(3) The Bureau will make an
assessment of the contracts under this
Act.
(b) The Bureau will make such reports
as described in subparagraph (a) of this
section publically available.
§ 273.202 Does this part include an
information collection?
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. Responses
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 K—Appeals
§ 273.206
May a contract be appealed?
Frm 00035
Fmt 4702
The contractor may request dispute
resolution in writing to the Regional
Director.
(a) The Bureau has in place an
alternative dispute resolution (ADR)
process.
(1) The ADR process is intended to be
a supplement to, and not a replacement
for, the normal appeal process.
(2) Participation as a complainant in
the ADR process is voluntary.
(3) Should a contractor participate in
an ADR process, the pre-complaint
process may extend to 90 days.
(b) The ADR process may result in an
informal resolution of the complaint;
(c) If the ADR process does not result
in an informal resolution of the
complaint, the contractor still has the
right to continue to pursue an appeal.
§ 273.208 How does a Tribal organization
request an appeal?
A Tribal organization may request an
appeal pursuant to Part 900 of this
Chapter.
§ 273.209 How does a State, public school
district, or an Indian corporation request an
appeal?
The State, public school district, or an
Indian corporation may request an
appeal by filing an appeal with the
Civilian Board of Contract Appeals
under the Contract Disputes Act, 41
U.S.C. 7101–7109, no later than 90
calendar days after the date the
contractor receives the decision.
Dated: June 6, 2019.
Tara Sweeney,
Assistant Secretary—Indian Affairs.
[FR Doc. 2019–13632 Filed 6–26–19; 8:45 am]
BILLING CODE 4337–15–P
PENSION BENEFIT GUARANTY
CORPORATION
29 CFR Parts 4001, 4006, 4010, 4041
and 4043
RIN 1212–AB34
Miscellaneous Corrections,
Clarifications, and Improvements
Pension Benefit Guaranty
Corporation.
ACTION: Proposed rule.
AGENCY:
(a) A contractor may appeal:
(1) An adverse decision or action of
the Bureau regarding a contract; or
(2) A decision to cancel a contract for
cause.
(b) The Secretary encourages
contractors to seek all means of dispute
resolution before a formal appeal.
PO 00000
§ 273.207 How does a contractor request
dispute resolution?
Sfmt 4702
The Pension Benefit Guaranty
Corporation (PBGC) is making
miscellaneous technical corrections,
clarifications, and improvements to its
regulations on Reportable Events and
Certain Other Notification
Requirements, Annual Financial and
Actuarial Information Reporting,
SUMMARY:
E:\FR\FM\27JNP1.SGM
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]]>Agencies
[Federal Register Volume 84, Number 124 (Thursday, June 27, 2019)]
[Proposed Rules]
[Pages 30647-30666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13632]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 273
[190D0102DR/DS5A300000/DR.5A311.IA000119]
RIN 1076-AF24
Education Contracts Under Johnson-O'Malley Act
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Under the Johnson O'Malley (JOM) Act, the Bureau of Indian
Education (BIE) provides assistance, through contracts, for Indian
students attending public schools and non-sectarian private schools.
Congress recently updated the JOM Act with the JOM Supplemental Indian
Education Program Modernization Act (JOM Modernization Act). This
proposed rule would implement the JOM Act, as amended, to clarify the
eligibility requirements for Indian students to receive the benefits of
a JOM contract, to clarify the funding formula and process to ensure
full participation of contracting parties, and to otherwise reconcile
and modernize the rules to comport with the activities of the
contracting parties under the Act, as amended.
DATES: Please submit comments by August 26, 2019.
ADDRESSES: You may submit comments by any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. The rule is
listed under the agency name ``Bureau of Indian Affairs.''
--Email: [email protected]. Include the number 1076-AF24 in the
subject line of the message.
--Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative
Action, U.S. Department of the Interior, 1849 C Street NW, MIB-4660-MS,
Washington, DC 20240. Include the number 1076-AF24 in the subject line
of the message.
--Hand delivery: Elizabeth Appel, Office of Regulatory Affairs &
Collaborative Action, U.S. Department of the Interior, 1849 C Street
NW, MS 4660, Washington, DC 20240. Include the number 1076-AF24 in the
subject line of the message.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and search for
Docket Number BIA-2018-0002. 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 on the information collections contained in this proposed
regulation (see ``Paperwork Reduction Act'' section, below) are
separate from those on the substance of the rule. Send comments on the
information collection burden to OMB by facsimile to (202) 395-5806 or
email to the OMB Desk Officer for the Department of the Interior at
[email protected]. Please send a copy of your comments to the
person listed in the FOR FURTHER INFORMATION CONTACT section of this
notice.
Please see ``V. Tribal Consultation'' of this preamble for
addresses of Tribal consultation sessions on this proposed rule.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Overview of Proposed Rule
A. Indian Student Eligibility
1. History of Indian Student Eligibility for Benefits of JOM
Education Contracts
2. March 2018 Proposed Rule: Comments and Responses
3. Proposed Revisions to Indian Student Eligibility Requirements
B. Funding Formula
C. Other Reconciliation and Modernization
III. Subpart-by-Subpart Summary of Proposed Changes
IV. Crosswalk of Proposed Changes
V. Tribal Consultation
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
B. Reducing Regulation and Controlling Regulatory Costs (E.O.
13771)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 12630)
G. Federalism (E.O. 13132)
H. Civil Justice Reform (E.O. 12988)
I. Consultation With Indian Tribes (E.O. 13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O. 13211)
M. Clarity of This Regulation
N. Public Availability of Comments
[[Page 30648]]
I. Background
The JOM Act authorizes the Secretary of the Interior (Secretary) to
enter into contracts with States, schools, and private nonsectarian
organizations, and to expend appropriated funds in support of Indian
students under such contracts. See, 25 U.S.C. 5341 et seq. Federally
recognized Indian Tribes and Tribal organizations are also eligible to
apply for JOM contracts. Contracts under JOM contain educational
objectives that adequately address the educational needs of the Indian
students who are to be beneficiaries of the contract and assures that
the contract is capable of meeting such objectives. See, 25 U.S.C.
5345. The regulations at 25 CFR part 273 implement this authority. The
regulations at 25 CFR part 273 became effective in 1975 and the rule
has been in effect over 40 years without substantial changes. In 2018,
Congress updated the JOM Act with the JOM Modernization Act. This
proposed rule, if adopted, would update 25 CFR part 273 to implement
the JOM Modernization Act and make other changes necessary to update
the rule, as described below.
II. Overview of Proposed Rule
The JOM Modernization Act requires the BIE to revise the existing
regulations at 25 CFR part 273, to:
1. Determine how the regulatory definition of ``eligible Indian
student'' may be revised to clarify eligibility requirements for
contracting parties under the Act;
2. Determine, as necessary, how the funding formula described in
Sec. 273.31 may be clarified and revised to ensure full participation
of contracting parties and provide clarity on the funding process under
the Act; and
3. Reconcile and modernize the rule to comport with the activities
of the contracting parties under the Act.
The proposed rule includes changes to meet these requirements.
Specifically, the proposed rule would:
Revise who is an eligible Indian student;
Clarify how funds can be used;
Describe how a new contracting party can enter into
contracts;
Revise what requirements do not apply to Tribal
organizations;
Revise the funding formula to reflect how it is currently
calculated;
Clarify the annual reporting requirements;
Clarify the contract renewal process;
Add a new subpart J--Responsibility and Accountability, to
address the Secretary's reporting requirements and compliance with
Paperwork Reduction Act; and
Clarify appeals processes.
Other technical edits would:
Revise the rule generally to meet plain language
requirements;
Add, delete, and revise definitions to provide clarity;
Divide long sections into shorter sections to provide
clarity; and
Update citations and remove citations that no longer
apply.
The BIE has proposed changes that reflect the need to update Part
273 and to incorporate the new requirements of the JOM Modernization
Act. The BIE welcomes comments on those subparts that are new and on
the substantive changes to the current rule, including: Terms and
definitions; eligible entities; eligible students; funding formula;
annual reporting requirements; contract renewal process; and appeals.
The following provides more background and detail on these proposed
changes.
A. Indian Student Eligibility
On March 21, 2018, the Bureau of Indian Education (BIE) proposed a
rule to update one section of the JOM regulations regarding when Indian
students are eligible for benefits of JOM education contracts, to
delete the requirement that the Indian student must have \1/4\ or more
degree of Indian blood. See 83 FR 12301. BIE received six relevant
comment submissions on the proposed rule, which are summarized below.
During this time, the JOM Modernization Act was also moving through
Congress and ultimately became law on December 31, 2018. See Public Law
115-404. The JOM Modernization Act requires rulemaking on the same
topic as the March 2018 proposed rule: Student eligibility for the
benefits of JOM education contracts. BIE is now taking a new look at
its March 2018 proposed rule based on comments received and proposing a
new rule to address both the eligibility qualifications and the other
requirements of the JOM Modernization Act.
1. History of Indian Student Eligibility for Benefits of JOM Education
Contracts
In 1957, the Bureau of Indian Affairs (BIA) published a rule, then
at 25 CFR 33.4 (Contracts with public schools), which allowed for the
expenditure of monies under contracts for the education of ``Indian
children of one-fourth or more degree Indian blood.'' See 22 FR 10533
(December 24, 1957). In 1974, BIA finalized a rule updating part 33 and
defining ``Indian'' at Sec. 33.1(g) as an individual of one-fourth or
more degree of Indian blood and a member of a Tribe, band, or other
organized group of Indians, including Alaska Natives, which is
recognized by the Secretary as being eligible for BIA Services. See 39
FR 30114 (August 21, 1974). In 1975, BIA replaced part 33 with part 273
and made changes in accordance with the Johnson O'Malley Act, 25 U.S.C.
452-456, as amended by the Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638). See 40 FR 51282, 51286 (November 4,
1975).\1\ In the new Sec. 273.12, BIA listed the eligibility criteria
for students as one-fourth or more degree Indian blood and recognized
by the Secretary as being eligible for Bureau Services. See 40 FR
51303, 51305 (November 4, 1975).
---------------------------------------------------------------------------
\1\ Note: The BIA originally proposed replacing part 33 with
part 403, but at the request of the Office of the Federal Register,
ultimately redesignated part 33 as part 273. See 40 FR 40982
(September 4, 1975).
---------------------------------------------------------------------------
The eligibility provision has not been updated in the regulations
since 1975. Prior to the 1990's, the Department implemented this
regulation to require one-fourth or more degree Indian blood. In 1990,
the U.S. District Court for the District of Nevada stated that this
regulatory requirement was too restrictive. See, Nevada Urban Indians,
Inc. v. United States, CV-N-90-238 BRT (September 12, 1990). In 1991,
the Director of the then-Office of Indian Education Programs (the
predecessor office to BIE), issued a memorandum to all Education Line
Officers and JOM Coordinators stating that to be eligible for JOM
services, the recipient must be:
A member of, or at least a one-fourth degree Indian blood
descendent of, a member of an Indian Tribe which is eligible for the
special programs and services provided by the United States through the
Bureau of Indian Affairs to Indians because of their status as Indians;
and
Reside on or near an Indian reservation or meet the
criteria for attendance at a Bureau off-reservation boarding school.
In April 2015, BIE held a series of Tribal consultation sessions to
address remaining confusion when counting eligible students and
proposed various options for revision to allow greater flexibility.
Most Tribal participants supported an option that would delete the word
``and'' from Sec. 273.12, allowing for eligibility for students who
are either Tribal members or have one-fourth degree Indian blood.
2. March 2018 Proposed Rule: Comments and Responses
The March 2018 proposed rule would have revised Sec. 273.12 of the
regulations
[[Page 30649]]
to define as eligible students only those students who are members of a
federally recognized Tribe and delete the provision stating that
students must also have one-fourth or more degree Indian blood. The
March 2018 proposed rule stated that the Department does not require a
certain degree of Indian blood and, as such proposed to delete the
requirement for a blood degree quantum.
BIE received six relevant comment submissions on the proposed rule.
Three of the submissions, including one from a Tribe, generally
supported the proposed rule. Another commenter supported the rule, but
questioned whether there are statistics showing that the blood
requirement has not been in use over the past 27 years. The other
comments are summarized here.
Comment 1: Delay the rulemaking until passage of the Johnson
O'Malley Modernization Act. A few commenters noted that legislation
requiring Interior to conduct a new student count and addressing the
same topic as the March 2018 rule was pending in Congress. One
commenter specifically suggested delaying the rulemaking as the JOM
Modernization Act was moving through Congress because that Act requires
a rulemaking that would be duplicative of the proposed rule.
Response: BIE accepted this comment, delaying further action on the
March 2018 proposed rule until the Act became law in December 2018 and
is now proposing a new rule that takes into account both the
requirements of the JOM Modernization Act and comments received on the
March 2018 proposed rule.
Comment 2: Retain the current regulation requiring a student to be
both a member of a federally recognized Tribe and one-fourth degree of
Indian blood or more. One Tribal commenter interpreted the current
regulatory language as requiring both Tribal membership and one-fourth
degree of Indian blood or more. According to that Tribal commenter,
removing the one-fourth blood quantum requirement would increase the
number of eligible students from 271,884 (the last national count of
students funded through JOM, done in 1995) to over 1 million students.
The Tribe's primary concern is that the funding per student will
decrease to an unacceptable level.
Response: BIE does not currently require both membership and a one-
fourth degree blood quantum because the U.S. District Court for the
District of Nevada stated that requiring a student to meet both these
requirements for eligibility was too restrictive. See, Nevada Urban
Indians, Inc. v. United States, CV-N-90-238 BRT (September 12, 1990).
In accordance with the requirements of the JOM Modernization Act, BIE
will conduct an updated count of eligible Indian students to provide
accuracy for Congress to determine the appropriate per-student funding
amount.
Comment 3: Allow Indian students to be eligible for benefits of a
JOM contract if they are a member of a federally recognized Tribe or,
in the alternative, are of one-fourth degree of Indian blood or more.
The National Indian Education Association (NIEA) pointed out in its
comments that thousands of Native students have at least one-fourth
blood quantum and currently participate in JOM programs, but are not
Tribal members due to enrollment requirements (e.g., requirements that
prevent enrollment until a certain age). The NIEA further noted that
Tribes have the flexibility to provide services to students that are
either enrolled in a Tribe or are descendants with at least one-fourth
blood quantum. These students are eligible to attend BIE schools and
participate in other Bureau-funded programs. The NIEA therefore
recommended that the regulations reflect this approach of including
students with at least one-fourth degree blood quantum as eligible for
the benefits of JOM contracts, regardless of whether such students are
Tribal members, both to align the regulations with current practice and
to provide parity with other Bureau-funded programs.
Response: The rule being proposed today would incorporate this
change by defining an eligible student as one who is a member of, or is
at least one-fourth degree Indian blood descendant of a member of a
federally recognized Tribe. This new proposed rule will clarify that a
student who is not enrolled in a federally recognized Tribe (e.g., due
to enrollment requirements) is still eligible if the student has
documentation of descendancy indicating at least one-fourth Indian
blood from federally recognized Tribe. This new proposed rule better
aligns with eligibility requirements for Indian students in other BIE
programs, such as the Indian Student Equalization Program (ISEP). The
ISEP, which applies to BIE-funded schools, requires an eligible Indian
student to be a member of, or at least one-fourth degree Indian blood
descendant of a member of, a Tribe that is eligible for the special
programs and services provided by the United States through the Bureau
to Indians because of their status as Indians, as well as residing on
or near a reservation, or meets the criteria for attendance at a Bureau
off-reservation home-living school. See 25 U.S.C. 2007(f).
Comment 4: Clarify what it means to be eligible for Bureau services
the definition of eligible students. A few commenters noted the
importance of clarity in the eligibility requirements. One commenter
stated that the rule should specify the requirements for a student to
be ``recognized by the Secretary as being eligible for Bureau
services.''
Response: BIE is addressing this comment by using language in the
proposed rule that now refers to membership in a federally recognized
Tribe. The Secretary publishes on an annual basis a list of Indian
entities recognized and eligible to receive services from BIA under the
1994 Lists Act. See, e.g., 84 FR 1200 (February 1, 2019). This list is
the list of federally recognized Tribes. Individuals are then eligible
for Bureau services by virtue of the individual's membership in a
federally recognized Tribe. The proposed rule would clarify this
portion of the eligibility criteria.
3. Proposed Revisions to Indian Student Eligibility Requirements
This proposed rule would establish clearer eligibility requirements
for Indian students to obtain the benefits of a JOM contract by
specifying that a student either must be a member of a federally
recognized Tribe or at least one-fourth degree Indian blood descendant
of a member of a federally recognized Tribe. See Sec. 273.112 of the
proposed rule.
B. Funding Formula
Within the current rule, the funding formula is the number of
eligible Indian students multiplied by 25 percent of whichever is
higher: The State average per pupil operating cost or National average
per pupil operating cost. Since 1988, BIE has been using a funding
formula that relies on data from the U.S. Department of Education on
the State annual cost per pupil and the National annual cost per pupil
to determine a weight factor. The weight factor is then used to
calculate funding, subject to a minimum weight factor.
The JOM Modernization Act requires the BIE determine ``as
necessary,'' how the funding formula may be ``clarified and revised''
to ensure full participation of contracting parties and provide clarity
on the funding process. The BIE proposes to revise the funding formula
to reflect the formula used since 1988, to ensure full participation of
contracting parties. The revised language will provide clarity on what
source is used to determine the initial
[[Page 30650]]
calculations, how the calculation is made to determine a weight factor
by State, and how the minimum weight factor is to be used should the
calculated weight factor for the State fall below the minimum. The
funding formula for contracts will be based on the calculated weight
factor and the number of eligible Indian students to be served by the
contract.
The JOM Modernization Act, Section 7(e)(1)(A), includes a ``hold
harmless'' provision that remains in effect for four years, which
states that any existing contracting party may not receive an amount
that is less than the amount that that party received for the fiscal
year preceding the date of enactment of the Act. After expiration of
the four years, the Act provides that no contractor may receive more
than a 10 percent decrease from the amount received in the prior year.
The BIE is not able to recommend a new funding formula without
decreasing the funds made available to existing contracting parties;
additionally, after four years it is possible that existing contractors
may receive reductions in funding even beyond the FY 2017 levels. The
BIE welcomes comments on this matter for any recommendations on how to
revise the funding formula proposed in the rule to support all existing
contracting parties receiving funding for JOM programs. Under the rule
as proposed the funding formula at Sec. 273.31 will be at Sec.
273.140.
C. Other Reconciliation and Modernization
The JOM Modernization Act requires BIE to otherwise reconcile and
modernize the rules to comport with the activities of the contracting
parties. After a thorough review of the current rule, there were areas
that clearly required a revision. The revisions being proposed are,
among other things, intended to make the regulations more user-friendly
through plain language.
III. Subpart-by-Subpart Summary of Proposed Changes
A. Subpart A--General Provisions and Definitions
In subpart A, the BIE proposes to continue to address the substance
of each of the existing sections (purpose and scope, definitions,
revision or amendment of regulations, and policy of maximum Indian
participation) with updates. For example, BIE proposes to split the
purpose and scope section into several sections; add, revise, and
remove definitions; and change requirements for revising or amending
the regulations to provide that the Bureau will follow the
Administrative Procedure Act. The BIE proposes to add a section on how
the Secretary will ensure full geographic coverage and full
participation to address a requirement in the JOM Modernization Act
that the Secretary consult with eligible entities that have not
previously participated in the JOM program.
B. Subpart B--Program Eligibility & Applicability
The proposed subpart B addresses the same topics of eligible
applicants (but proposes updating the term to refer to ``eligible
entities'' to reflect the language of the JOM Modernization Act) and
eligible students as the current subpart B, but proposes moving the
other subpart B topics to subparts C, D and E. The proposed subpart B
would also address what funds may be used under JOM contracts and what
programs may be contracted under the JOM Act. The BIE proposes to
revise the description of ``eligible students'' to reflect information
collected during previous Tribal consultations sessions and add
examples of how JOM contract funds can be used. The BIE further
proposes to clarify which provisions Tribal organizations are subject
to (see proposed Sec. 273.111) and clarify that Tribal organizations
are not excluded from the annual reporting requirements.
C. Subpart C--Indian Education Committee
The proposed subpart C would address the Indian Education
Committee, which is in current subpart B. The BIE proposes to revise
the description of ``Indian Education Committee'' to include preference
in committee membership be given to parents and guardians of children
enrolled in a school. The BIE also proposes to remove a requirement to
report to the Bureau regarding who will serve on the Indian Education
Committee. The BIE proposes to add that organizational papers and by-
laws of the Indian Education Committee may include additional powers
and duties that would permit the Committee to, among other things,
establish policy and procedures for hearing grievances.
D. Subpart D--Education Plan
The proposed subpart D would address the contents of the Education
Plan (currently addressed in subpart B) and would add a section
specifying that an education plan will be approved by a Regional
Director (updated from ``Area Director''), under 25 U.S.C. 5345.
E. Subpart E--Contract Proposal, Review, and Approval
The BIE proposes to move provisions that are in the current subpart
B regarding applications and requests to contract, contract review, and
approval, to a new subpart E. This proposed subpart would include a
section regarding how eligible entities who have not participated in
the program in the past should submit a contract proposal. The BIE
proposes to change the contract approval period from 60 days to 90 days
and to indicate that contract approval and award will be made through
the applicable Regional office, eliminating the need for the central
office to process and approve. The change from 60 to 90 days aligns JOM
contract approval with the statutory 90-day approval period for both
Public Law 93-638 contracts and Public Law 102-477 plans. The proposed
subpart also includes updates to outdated statutory and regulatory
citations. Since the BIE is responsible for administering Indian
education programming for the Department, the BIE is considering
changes to this proposed rule to reflect JOM contract administration
partly or entirely through the BIE as opposed to the Bureau of Indian
Affairs. The BIE welcomes comments on such possible changes.
F. Subpart F--Funding Provisions
The BIE proposes to move provisions that are in current subpart C
to a new subpart F. The proposed subpart would revise the funding
formula to reflect current practice, with the four-year ``hold
harmless'' and phased decrease approach provided by the JOM
Modernization Act. This proposed subpart would also move the section on
advance payments from current subpart D and revise the section on
advance payments to comply with 25 U.S.C. 5324(b).
G. Subpart G--Annual Reporting Requirements
The BIE proposes to revise reporting requirements to reflect the
annual student count reporting requirements of the JOM Modernization
Act. As such, the BIE proposes to add sections requiring an annual
report, describing what must be included in the annual report,
describing what will happen if a contractor fails to submit an annual
report, and identifying who will notify a contractor that they have
failed to submit an annual report. The BIE also proposes to add a
section explaining that the Bureau is required to provide technical
assistance and training, and describing the process to request
[[Page 30651]]
assistance to meet annual reporting requirements. The BIE proposes to
add a section describing how a decrease in the reported student count
will affect future funding. The BIE proposes to include language
reflective of the JOM Modernization Act defining a ``contracting
party'' as an entity that has a contract through a program authorized
under this Act.
H. Subpart H--General Contract Requirements
Proposed subpart H addresses many of the same topics as current
subpart D. In addition to updating outdated statutory and regulatory
citations, the BIE proposes to update records requirements now that
contract files are to be filed under the Department Records Schedule.
The BIE proposes to revise a contractor's responsibility for penalties
under the Privacy Act requirements. The BIE proposes to revise who will
investigate a complaint received of a Civil Rights Act violation in
State school districts and provide that such investigations will be
performed by the Department of Education and remove references to the
Department of Justice.
I. Subpart I--Contract Renewal, Revisions, and Cancellations
Proposed subpart I would address the topics in current subpart E,
but would also include new provisions adding a contract renewal
process.
J. Subpart J--Responsibility and Accountability
The BIE proposes to add this subpart to meet requirements in the
JOM Modernization Act which, among other things, requires the Secretary
to provide an annual report to the Committee on Indian Affairs in the
Senate, the Subcommittee on Interior, Environment, and Related Agencies
of the Committee on Appropriations of the Senate, the Committee on
Education and the Workforce of the House of Representatives, and the
Subcommittee on Interior, Environment, and Related Agencies of the
Committee on Appropriations of the House of Representatives that
includes a determination on the number of eligible students served by
each contracting party, recommendations on appropriate funding levels
for the program based upon such determination, and an assessment of the
contracts under JOM.
K. Subpart K--Appeals
The BIE proposes to change this subpart (currently at subpart F) to
encourage the use of an Alternate Dispute Resolution (ADR) process that
has been established by the Department of the Interior prior to filling
a formal appeal. The proposed subpart would also be amended to refer to
the Contracts Dispute Act of 1978, 41 U.S.C. 7101-7109, which created
the Civilian Board of Contract Appeals (CBCA). The CBCA is an
independent tribunal with its own formal appeal process. Additional
information on the CBCA can be found at: https://www.dbca.gov/. Tribes and Tribal organizations may bring appeals involving
Self-Determination Act contracts before the CBCA under 25 U.S.C.
5331(d)-(e).
IV. Crosswalk of Proposed Changes to 25 CFR 273
The crosswalk below lists the current sections, proposed sections,
and a summary of proposed substantive changes. Except in a few
instances, this table does not note non-substantive changes. For
example, except in the definitions sections, the crosswalk does not
note terminology changes that do not substantively affect the meaning
(e.g. replacing ``Area Director'' with ``Regional Director'' or ``Area
Director or Commissioner'' with ``approving official,'' ``Bureau
contracting officer'' with ``awarding official,'' ``application to
contract'' with ``contract proposal'' or ``request'').
------------------------------------------------------------------------
Proposed 25 CFR Summary of proposed
Current 25 CFR section section changes
------------------------------------------------------------------------
273.1(a) Purpose and Scope.. 273.101 What is the No substantive
purpose and scope change.
of this part?
273.1(b) & (c).............. .................... Combines with
current 273.11(b)
and (c), into
proposed Sec.
273.111.
273.1(d) & (e).............. 273.105 How do these No substantive
regulations affect change.
existing Tribal
rights?
273.2 Definitions........... 273.106 What key --Deletes
terms do I need to definitions of
know? ``Commissioner,''
``Public Law 93-
638,''
``Superintendent,''
and ``Assistant
Secretary--Indian
Affairs'' because
those terms are not
used.
--Adds definitions
for ``Academic
year,'' ``Appeal,''
``Approving
official,''
``Awarding
official,''
``Calendar year,''
``Capital outlay,''
``Contract,''
``Contracting
party,''
``Contractor,''
``Debt
retirement,''
``Director,''
``Eligible
entity,''
``Existing
contracting
party,'' ``Fiscal
year,'' ``Indian
advisory school
board,'' ``Initial
contract proposal
and contract
proposal,'' ``Local
Indian Committee,''
``New contracting
party,'' ``Public
school district,''
``Regional
Director,''
``School official
or school
administrator,''
``Scope of work,''
and ``System of
record.''
--Replaces
definition of
``Area Director''
with a definition
of ``Regional
Director.''
--Revises the
definitions of
``Bureau'' to refer
to BIE, ``Days'' to
address cases where
a specified date
falls on a weekend
or holiday,
``Johnson-O'Malley
Act'' to reflect
statutory updates,
and ``Supplemental
programs'' to
reflect updates to
citations.
273.3(a) & (e) Revision or 273.102 How will No substantive
amendment of regulations. revisions or change.
amendments be made
to this part?
273.3(b) & (c).............. .................... Deletes because this
process is already
required under the
Administrative
Procedure Act.
[[Page 30652]]
273.3(d).................... .................... Deletes annual
consultation
requirement because
regulation already
requires
consultation for
revisions or
amendments.
273.4 Policy of maximum 273.103 What is the No substantive
Indian participation. Secretary's policy change.
of maximum Indian
participation?
273.104 How will the New section.
Secretary extend
geographic coverage
and enhance
participation under
the Johnson-
O'Malley Act?
273.11(a) Eligible 273.110 Who is Revises to clarify
applicants. eligible to request which school
contracts under the districts are
Johnson-O'Malley eligible entities
Act? to contract, to
define the purpose
of the contracts,
and to refer to
requesting, rather
than applying for,
contracts.
273.11(b) & (c)............. 273.111 How do the Revises to state
requirements for which provisions
Tribal Tribal
organizations organizations are
differ from those not subject to.
for other eligible
entities?
273.12 Eligible students.... 273.112 Who is an Revises based on
eligible Indian recommendations
student under the received in prior
Johnson-O'Malley Tribal
Act? and 273.128 consultations.
How are contracts
prioritized?
273.113 How can the New section.
funds be used under
the Johnson-
O'Malley Act?
273.13(a) & (b) Proposals 273.126 What No substantive
eligible for contracts. proposals are change.
eligible for
contracts under the
Johnson-O'Malley
Act?
273.13(c)................... Sec. 273.129 May No substantive
the Regional change.
Director reimburse
a public school
district for
educating non-
resident Indian
students?
273.14 Preparing the 273.119 What is an Revises the
education plan. education plan and introduction
what must it paragraph to
include? include language
from 25 U.S.C. 5345
and combines
sections.
273.120 Does an New section.
education plan need
to be approved by
the Regional
Director?
273.121 When does New section.
the Regional
Director approve
the education plan?
273.15(a) & (b) 273.115 Who No substantive
Establishment of Indian determines the change.
Education Committee. unique educational
needs of eligible
Indian students?
273.15(c) & (d)............. 273.116 Does an Deletes requirement
Indian Education to file as soon as
Committee need to practicable.
establish
procedures and
report to the
Regional Director?
273.16(a) Powers and duties 273.117 What are the No substantive
of Indian Education powers and duties change.
Committee. of the Indian
Education
Committee?
273.16(b)................... 273.118 Are there No substantive
additional change.
authorities an
Indian Education
Committee can
exercise?
273.17(a) Programs approved 273.114 What No substantive
by the Indian Education programs may be change.
Committee. contracted under
the Johnson-
O'Malley Act?
273.17(b)................... 273.171 Can a No substantive
contractor make change.
changes to a
program approved by
an Indian Education
Committee?
273.17(c)................... 273.127 Can a No substantive
contract include change.
funds to support
the duties of an
Indian Education
Committee?
273.18 Additional .................... Combines with
requirements for education current section
plan. 273.14 (preparing
the education
plan), into
proposed section
273.119.
273.19 Obtaining application 273.125 How may a Revises language to
forms. new contracting reflect an initial
party enter into contract proposal
contract under the versus an
Johnson-O'Malley application to
Act? contract.
273.20 Content of 273.130 What is Revises language to
application to contract. required in the reflect an initial
contract proposal contract proposal
for funding? versus an
application to
contract.
273.21 Tribal request for 273.131 What is Deletes the February
contract. required for a 1 deadline for
Tribal request for requests to
a contract? contract.
273.22(a) Application 273.132 Who will Revises to reflect
approval officials. review and approve current process of
the contract Regions and
proposal? Regional Director.
273.22(b)................... .................... Deletes.
273.23 Submitting .................... Deletes.
application to Area Office.
273.24 Area Office review 273.133 What is the Replaces ``Part 2 of
and decision. process for review this Chapter'' with
and decision? ``Subpart I of this
part.''
273.25 Deadline for Area 273.134 What is the Extends timeline for
Office action. timeframe for approval from 60
contract decision? days to 90 days to
allow for
additional review.
273.26 Submitting .................... Deletes because
application to Central proposals are
Office. submitted to
Regions.
273.27 Central Office review .................... Deletes because
and decisions. proposals are
submitted to
Regions.
273.28 Deadline for Central .................... Deletes because
Office action. proposals are
submitted to
Regions.
273.29 Negotiating the 273.135 Who will No substantive
contract. negotiate the change.
contract?
[[Page 30653]]
273.31(a) Distribution 273.140 What is the Revises to reflect
formula. funding formula to the current funding
distribute funds? formula calculated
by the BIE.
273.31(b)................... .................... Deletes because
there is no
authority for
exceptions in 25
U.S.C. 5342 et.
seq.
273.32 Pro rata requirement. 273.141 Will funding No substantive
be pro-rated? change.
273.33 Use of funds for .................... Deletes because this
operational support. is already part of
the definition of
``operational
support.''
273.34 Use of other Federal, 273.143 Must other No substantive
State and local funds. Federal, State and change.
local funds be
used?
273.35 Capital outlay or 273.144 Can Johnson- No substantive
debt retirement. O'Malley funds be change.
used for Capital
outlay or debt
retirement?
273.36 Eligible 273.145 How can No substantive
subcontractors. funds be used for change.
subcontractors?
273.37 Use of funds outside 273.146 Can funds be No substantive
of schools. used outside of change.
schools?
273.38 Equal quality and 273.147 Are there No substantive
standards of education. requirements of change.
equal quality and
standard of
education?
273.41 Special program 273.170 What special No substantive
provision to be included in program provisions change.
contract. must be included in
the contract?
273.42 Civil Rights Act 273.183 Can the Replaces
violations. Secretary ``Department of
investigate a Health, Education
potential Civil and Welfare'' with
Rights Act ``Department of
violation? Education,''
deletes requirement
for a Memorandum of
Understanding
between the
Department of the
Interior and the
Department of
Health, Education,
and Welfare.
Deletes provision
regarding formal
hearings.
273.43 Advance payments..... 273.142 Are advance Replaces outdated
payments on a citations with
contract allowed provision allowing
under the Johnson- Regional Director
O'Malley Act? to determine
installments and
conditions under 25
U.S.C. 4324(b).
273.44 Use and transfer of 273.176 May there be No substantive
Government property. a use and transfer change.
of Government
property?
273.45(a)-(c) Indian 273.174 Are there Adds ``for the
preference. any Indian benefit of Indian
preference students'' from 25
requirements for U.S.C. 5306(b),
contracts and adds to (a) ``in
subcontracts? connection with the
administration of
such contract(s)''
from 25 U.S.C.
5306(b), and
deletes redundant
language.
273.45(d)................... 273.175 How will a Deletes language
Tribal governing stating ``subject
body apply Indian to the provisions
preference of part 14H of
requirements for title 41'' and ``to
contracts and the extent that
subcontracts? such requirements
are not
inconsistent with
the purpose and
intent of
paragraphs (a), (b)
and (c) of this
section.''
273.46 Liability and motor 273.177 Who will No substantive
vehicle insurance. provide liability change.
and motor vehicle
insurance?
273.47 Recordkeeping........ 273.178 Are there Replaces ``General
contract Records Schedules
recordkeeping and the Bureau
requirements? Records Control
Schedule'' with
updated records
schedule.
273.48 Audit and inspection. 273.179 Are there Replaces
contract audit and ``Comptroller
inspection General and the
requirements? Secretary'' with
``Regional
Director.''
273.49 Freedom of 273.180 Are there No substantive
Information. disclosure change.
requirements for
contracts?
273.50(a) Annual Reporting.. 273.150 Does an Adds three
existing additional
contracting party reporting elements
need to submit any as required by
reports? and Public Law 115-404:
273.151 What General information
information must about the
the existing contractor, general
contracting party information about
provide in the the number and
annual report? and names of the
273.152 When is the schools, and the
annual report due? number of eligible
Indian students who
were served using
the amounts
allocated during
the previous fiscal
year.
273.50(b)................... .................... Deletes.
273.50(c)................... 273.153 Who else No substantive
needs a copy of the change.
annual report?
273.154 What will New section.
happen if the
existing
contracting party
fails to submit an
annual report?
273.155 How will the New section.
existing
contracting party
know when reports
are due?
273.156 Will New section.
technical
assistance be
available to comply
with the annual
reporting
requirements?
273.157 What is the New section.
process for
requesting
technical
assistance and/or
training?
273.158 When should New section.
the existing
contracting party
request technical
assistance and/or
training?
273.159 If the New section.
existing
contracting party
reported a decrease
of eligible Indian
students, how will
funding be reduced?
273.160 Can the New section.
Secretary apply a
ratable reduction
in Johnson-O'Malley
program funding?
273.161 What is the New section.
maximum decrease in
funding allowed?
[[Page 30654]]
273.51 Penalties............ 273.182 Are there No substantive
penalties for change.
misusing funds or
property?
273.52 State school law..... 273.172 May State No substantive
employees enter change.
Tribal lands,
reservations or
allotments?
273.53 Applicable 273.173 What Replaces
procurement regulations. procurement ``Procurement
requirements apply Regulations (41 CFR
to contracts? part 1), as
supplemented by the
Interior
Procurement
Regulations (41 CFR
part 14), and the
Bureau of Indian
Affairs Procurement
Regulations (41 CFR
part 14H), except
41 CFR part 14H-
70'' with
``Acquisition
Regulations at 48
CFR Part 1.''
273.54 Privacy Act 273.181 Are there Updates citations,
requirements. Privacy Act and clarifies the
requirements for potential for
contracts? criminal penalties
for knowingly and
willfully
disclosing a record
about an individual
without the written
request or consent
of that individual.
273.191 How may a New section.
contract be renewed
for Johnson-
O'Malley funding?
273.192 What is New section.
required to renew a
contract?
273.6 Contract revision or 273.193 May a No substantive
amendments. contract be revised change.
or amended?
273.194 Does the New section.
Indian Education
Committee have
authority to cancel
contracts?
273.62 Cancelling a contract 273.195 May a Replaces ``subpart C
for cause. contract be of 43 CFR part 4''
cancelled for for appeals with
cause? ``subpart K of this
part''.
273.71 Contract Appeal and 273.206 May a Combines with
contract be current Sec. Sec.
appealed? 273.72 and 273.73
into proposed Sec.
273.206.
273.72 Appeal from decision .................... Combines into
to cancel contract for proposed Sec.
cause. 273.206.
273.73 Other appeals........ .................... Combines into
proposed Sec.
273.206.
273.201 What is New section.
required for the
Secretary to meet
his or her
reporting
responsibilities?
273.202 Does this New section.
part include an
information
collection?
273.207 How does a New section.
contractor request
dispute resolution?
273.208 How does a New section.
Tribal organization
request an appeal?
273.209 How does a New section.
State, public
school district, or
an Indian
corporation request
an appeal?
------------------------------------------------------------------------
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
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 proposed rule in a manner consistent with
these requirements. This proposed rule is also part of the Department's
commitment under the Executive Order to reduce the number and burden of
regulations.
B. Reducing Regulations and Controlling Regulatory Costs (E.O. 13771)
E.O. 13771 of January 30, 2017, directs Federal agencies to reduce
the regulatory burden on regulated entities and control regulatory
costs. E.O. 13771, however, applies only to significant regulatory
actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O.
13771 does not apply to this rule.
C. Regulatory Flexibility Act
The Department of the Interior certifies that this rule 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.).
D. Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rulemaking under 5 U.S.C. 804(2),
the Small Business Regulatory Enforcement Fairness Act. This proposed
rule:
(a) Does not have an annual effect on the economy of $100 million
or more because the funding available through JOM does not approach
this amount.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because this rule affects only certain
education contracts.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises
because this rule affects only certain education contracts.
E. 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
[[Page 30655]]
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.
F. Takings (E.O. 12630)
This proposed rule does not affect a taking of private property or
otherwise have taking implications under Executive Order 12630 because
this rulemaking, if adopted, does not affect individual property rights
protected by the Fifth Amendment or involve a compensable ``taking.'' A
takings implication assessment is not required.
G. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement because the rule
affects only individuals' eligibility under certain education
contracts. A federalism summary impact statement is not required.
H. Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of Executive
Order 12988. Specifically, this proposed 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.
I. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in Executive Order 13175 and have determined that it has substantial
direct effects on federally recognized Indian Tribes because one
portion of the criteria for eligibility of Indian students is Tribal
membership. We will consult with Tribes following publication of this
proposed rule. BIE consulted with Tribes on the eligibility criteria in
2015 and provided an opportunity for input on this subject following
publication of the March 2018 proposed rule; however, the statutory
deadline for completion of this rulemaking December 31, 2019, prevents
us from further consultation prior to publication of this rule.
J. Paperwork Reduction Act
This rule contains information collections requiring approval under
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. In
accordance with the PRA, we provide the general public and other
Federal agencies with an opportunity to comment on new, proposed,
revised, and continuing collections of information. This helps us
assess the impact of our information collection requirements and
minimize the public's reporting burden. It also helps the public
understand our information collection requirements and provide the
requested data in the desired format.
We are soliciting comments on the proposed ICR that is described
below. We are especially interested in public comment addressing the
following issues:
(1) Is the collection necessary to the proper functions of the BIE;
(2) Will this information be processed and used in a timely manner;
(3) Is the estimate of burden accurate;
(4) How might the BIE enhance the quality, utility, and clarity of
the information to be collected; and
(5) How might the BIE minimize the burden of this collection of the
respondents, including through the use of information technology.
Comments you submit in response to this notice are a matter of
public record. We will include or summarize each comment in our request
to OMB to approve this ICR.
Abstract: The regulations at 25 CFR 273, Subpart E, implement in
section 7(c) Contracting Party Student Count Reporting Compliance, of
the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act (Pub. L. 115-404), enacted December 31, 2018. These
regulations require the BIE to implement an annual reporting
requirement for existing JOM contractors to report a student count
served by each contracting party and for the BIE to provide an
assessment on the contracts receiving JOM funds. The information
received from the annual reporting requirements of the contractor will
allow the Secretary to provide an annual report to the appropriate
Committee and Subcommittees in the Senate and of the House of
Representatives. The JOM Modernization Act indicates a ``contracting
party'' is an entity that has a contract through a program authorized
under this Act. It does not exclude Tribal organizations from the
annual reporting requirements.
The Department is seeking approval for a new OMB Control Number.
Title of Collection: Johnson O'Malley Student Count Annual Report.
OMB Control Number: 1076-NEW.
Type of Review: New collection.
Respondents/Affected Public: Tribal organizations, States, public
school districts, Indian corporations.
Total Estimated Number of Annual Respondents: 312.
Total Estimated Number of Annual Responses: 1,197.
Estimated Completion Time per Response: Ranges from 2 to 80 hours.
Total Estimated Number of Annual Burden Hours: 11,450.
Respondent's Obligation: Required to Obtain a Benefit.
Frequency of Collection: Annually.
Total Estimated Annual Non-hour Burden Cost: $0.
K. 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 these are ``regulations . . . whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively or case-by-case.'' 43 CFR 46.210(i).
We have also determined that the rulemaking does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under NEPA.
L. 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.
M. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), and
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), 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.
[[Page 30656]]
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.
N. 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.
V. Tribal Consultation
The JOM Modernization Act requires the Secretary to undertake and
complete a rulemaking process, following the provisions of subchapter
II of chapter 5 of title 5 of the United States Code, by December 31,
2019. The BIE will be engaging in Tribal consultation and consultation
with eligible entities and interested parties. Eligible entities
include existing JOM contractors and potential JOM contractors,
including States, public school districts, tribal organizations, Indian
corporations, and previously private schools. Interested parties
include, but are not limited to, JOM Indian Education Committee
members, employees of public schools serving American Indian students,
urban Indian communities, parents, and students.
BIE will be hosting a listening session for interested Tribal
representatives on June 24, 2019, at the National Congress of American
Indians (NCAI) Mid-Year Conference in Sparks, Nevada. The BIE will also
conduct the following consultations, in locations across the country
that reflect the greatest number of JOM contracts.
------------------------------------------------------------------------
Date Time Location
------------------------------------------------------------------------
July 16, 2019............. 8 a.m.-10 a.m. (Local Sequoyah High School,
Time) Consultation 17091 S Muskogee
with Tribes. Ave., Tahlequah, OK
74464.
July 16, 2019............. 1 p.m.-3 p.m. (Local Sequoyah High School,
Time) Consultation 17091 S Muskogee
with Eligible Ave., Tahlequah, OK
Entities. 74464.
July 19, 2019............. 9:30 a.m.-11:30 a.m. Bismarck, ND--Please
(Local Time) check https://
Consultation with www.bie.edu/JOM for
Tribes. specific location.
July 19, 2019............. 1 p.m.-3 p.m. (Local Bismarck, ND--Please
Time) Consultation check https://
with Eligible www.bie.edu/JOM for
Entities. specific location.
July 23, 2019............. 9 a.m.-12 p.m. (MDT) Please see https://
Consultation with www.bie.edu/JOM for
Tribes. access information.
July 23, 2019............. 1 p.m.-4 p.m. (MDT) Please see https://
Consultation with www.bie.edu/JOM for
Eligible Entities. access information.
July 25, 2019............. 9 a.m.-12 p.m. (MDT) Please see https://
Consultation with www.bie.edu/JOM for
Tribes. access information.
July 25, 2019............. 1 p.m.-4 p.m. (MDT) Please see https://
Consultation with www.bie.edu/JOM for
Eligible Entities. access information.
------------------------------------------------------------------------
You can find additional information at the BIE JOM web page at:
https://www.bie.edu/JOM/.
List of Subjects in 25 CFR Part 273
Government contracts, Indians--education, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, the Department of the
Interior, Bureau of Indian Affairs, proposes to revise 25 CFR part 273
as follows:
PART 273--EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT
Subpart A--General Provisions and Definitions
Sec.
273.101 What is the purpose and scope of this part?
273.102 How will revisions or amendments be made to this part?
273.103 What is the Secretary's policy of maximum Indian
participation?
273.104 How will the Secretary extend geographic coverage and
enhance participation under the Johnson-O'Malley Act?
273.105 How do these regulations affect existing Tribal rights?
273.106 What key terms do I need to know?
Subpart B--Program Eligibility & Applicability
273.110 Who is eligible to request contracts under the Johnson-
O'Malley Act?
273.111 How do the requirements for Tribal organizations differ from
those for other eligible entities?
273.112 Who is an eligible Indian student under the Johnson-O'Malley
Act?
273.113 How can the funds be used under the Johnson-O'Malley Act?
273.114 What programs may be contracted under the Johnson-O'Malley
Act?
Subpart C--Indian Education Committee
273.115 Who determines the unique educational needs of eligible
Indian students?
273.116 Does an Indian Education Committee need to establish
procedures and report to the Director?
273.117 What are the powers and duties of the Indian Education
Committee?
273.118 Are there additional authorities an Indian Education
Committee can exercise?
Subpart D--Education Plan
273.119 What is an education plan and what must it include?
273.120 Does an education plan need to be approved by the Regional
Director?
273.121 When does the Regional Director approve the education plan?
Subpart E--Contract Proposal, Review and Approval
273.125 How may a new contracting party request a contract under the
Johnson-O'Malley Act?
273.126 What proposals are eligible for contracts under the Johnson-
O'Malley Act?
273.127 Can a contract include funds to support the duties of an
Indian Education Committee?
273.128 How are contracts prioritized?
273.129 May the Regional Director reimburse a public school district
for educating non-resident Indian students?
273.130 What is required in the contract proposal for funding?
273.131 What is required for a Tribal request for a contract?
273.132 Who will review and approve the contract proposal?
273.133 What is the process for review and decision?
273.134 What is the timeframe for contract decision?
273.135 Who will negotiate the contract?
Subpart F--Funding Provisions
273.140 What is the funding formula to distribute funds?
273.141 Will funding be pro-rated?
[[Page 30657]]
273.142 Are advance payments on a contract allowed under the
Johnson-O'Malley Act?
273.143 Must other Federal, State and local funds be used?
273.144 Can Johnson-O'Malley funds be used for capital outlay or
debt retirement?
273.145 How can funds be used for subcontractors?
273.146 Can funds be used outside of schools?
273.147 Are there requirements of equal quality and standard of
education?
Subpart G--Annual Reporting Requirements
273.150 Does an existing contracting party need to submit any
reports?
273.151 What information must the existing contracting party provide
in the annual report?
273.152 When is the annual report due?
273.153 Who else needs a copy of the annual report?
273.154 What will happen if the existing contracting party fails to
submit an annual report?
273.155 How will the existing contracting party know when reports
are due?
273.156 Will technical assistance be available to comply with the
annual reporting requirements?
273.157 What is the process for requesting technical assistance and/
or training?
273.158 When should the existing contracting party request technical
assistance and/or training?
273.159 If the existing contracting party reported a decrease of
eligible Indian students, how will funding be reduced?
273.160 Can the Secretary apply a ratable reduction in Johnson-
O'Malley program funding?
273.161 What is the maximum decrease in funding allowed?
Subpart H--General Contract Requirements
273.170 Are there special program provisions to be included in the
contract?
273.171 Can a contractor make changes to a program approved by an
Indian Education Committee?
273.172 May State employees enter Tribal lands, reservations or
allotments?
273.173 What procurement requirements apply to contracts?
273.174 Are there any Indian preference requirements for contracts
and subcontracts?
273.175 How will a Tribal governing body apply Indian preference
requirements for contracts and subcontracts?
273.176 May there be a use and transfer of Government property?
273.177 Who will provide liability and motor vehicle insurance?
273.178 Are there contract recordkeeping requirements?
273.179 Are there contract audit and inspection requirements?
273.180 Are there disclosure requirements for contracts?
273.181 Are there Privacy Act requirements for contracts?
273.182 Are there penalties for misusing funds or property?
273.183 Can the Secretary investigate a potential Civil Rights Act
violation?
Subpart I--Contract Renewal, Revisions, and Cancellations
273.191 How may a contract be renewed for Johnson-O'Malley funding?
273.192 What is required to renew a contract?
273.193 May a contract be revised or amended?
273.194 Does the Indian Education Committee have authority to cancel
contracts?
273.195 May a contract be cancelled for cause?
Subpart J--Responsibility and Accountability
273.201 What is required for the Secretary to meet his or her
reporting responsibilities?
273.202 Does this part include an information collection?
Subpart K--Appeals
273.206 May a contract be appealed?
273.207 How does a contractor request dispute resolution?
273.208 How does a Tribal organization request an appeal?
273.209 How does a State, public school district or an Indian
corporation request an appeal?
Authority: Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-
2214 (25 U.S.C. 455-457), unless otherwise noted.
Subpart A--General Provisions and Definitions
Sec. 273.101 What is the purpose and scope of this part?
The purpose of this part is to set forth the process by which the
Secretary will enter into contracts for the education of Indian
students under the Johnson-O'Malley Act. Such contracts are for the
purpose of financially assisting those efforts designed to meet the
specialized and unique educational needs of eligible Indian students,
including supplemental programs and school operational support, where
such support is necessary to maintain established State educational
standards.
Sec. 273.102 How will revision or amendments be made to this part?
Prior to making any substantive revisions or amendments to this
part, the Secretary will consult with Indian Tribes and national and
regional Indian organizations to the extent practicable about the need
for revision or amendment and will consider their views in preparing
the proposed revision or amendment. Nothing in this section precludes
Indian Tribes or national or regional Indian organizations from
initiating a request for revisions or amendments.
Sec. 273.103 What is the Secretary's policy of maximum Indian
participation?
The meaningful participation in all aspects of educational program
development and implementation by those affected by such programs is an
essential requisite for success. Such participation not only enhances
program responsiveness to the needs of those served, but also provides
them with the opportunity to determine and affect the desired level of
educational achievement and satisfaction which education can and should
provide. Consistent with this concept, maximum Indian participation in
the development, approval, and implementation of all programs
contracted under this part is required.
Sec. 273.104 How will the Secretary extend geographic coverage and
enhance participation under the Johnson-O'Malley Act?
The Secretary will, to the extent practicable, and subject to the
availability of appropriations, ensure full geographic coverage and the
full participation of all federally recognized Tribes and school
districts, regardless of whether the school districts had entered into
a contract under the Johnson-O'Malley Act before fiscal year 1995.
Sec. 273.105 How do these regulations affect existing Tribal rights?
Nothing in these regulations may be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by an Indian Tribe;
(b) Authorizing or requiring the termination, waiving, modifying,
or reducing of any existing trust responsibility of the United States
with respect to the Indian people;
(c) Permitting significant reduction in services to Indian people
as a result of this part; or
(d) Mandating an Indian Tribe to request a contract or contracts.
Such requests are strictly voluntary.
Sec. 273.106 What key terms do I need to know?
Terms used in this part:
Academic year means the period of the year during which students
attend an educational institution.
Appeal means a request for an administrative review of an adverse
Agency decision.
Approving official means the Regional Director, or Agency
Superintendents (for Tribes assigned under their management), has the
responsibility and
[[Page 30658]]
duties to review, approve or decline the contract in accordance with
the Act.
Awarding official means any person who by appointment or delegation
in accordance with applicable regulations has the authority to enter
into and administer contracts on behalf of the United States of America
and make determinations and findings with respect thereto. Pursuant to
the Act, this person can be any Federal official, including but not
limited to, contracting officers or awarding official technical
representatives.
Bureau means the Bureau of Indian Education or Bureau of Indian
Affairs, as applicable.
Calendar year means the period of 365 days (or 366 days in leap
years) starting from January 1.
Capital outlay means money spent to acquire, maintain, repair, or
upgrade capital asset. Capital assets, also known as fixed assets, may
include machinery, land, facilities, or other business necessities that
are not expended during normal use.
Contract means to transfer the funds in support of the efforts
designed to meet the specialized and unique educational needs of Indian
students in the Johnson-O'Malley program from the Federal Government to
the contractor.
Contracting party means an entity that has a contract through a
program authorized under the Johnson-O'Malley Act.
Contractor means any Tribal organization, State, school district,
or Indian corporation to which a contract has been awarded.
Days means calendar days; except where a date specified in these
regulations falls on a Saturday, Sunday, or a Federal holiday, the
period will carry over to the next business day.
Debt retirement means the act of paying off debt completely to a
lender.
Director means the Director of the Bureau of Indian Education or
Bureau of Indian Affairs, as applicable.
Economic enterprise means any commercial, industrial, agricultural,
or business activity that is at least 51 percent Indian owned,
established or organized for the purpose of profit.
Education plan means a comprehensive plan for the programmatic and
fiscal services of and accountability by a contractor for the education
of eligible Indian students.
Eligible entity means a Tribal organization, State, public school
district, or Indian corporation is eligible to request a contract for a
supplemental or operational support program under this Act. For
purposes of this part, previously private schools are considered Tribal
organizations.
Existing contracting party means a contracting party that has a
contract under this Act that is in effect on the date of the JOM
Modernization Act (Pub. L. 115-404), enacted December 31, 2018.
Fiscal year means the period used by the Bureau for accounting and
budget purposes. The Bureau's fiscal year begins October 1 and ends
September 30.
Indian means a person who is a member of an Indian Tribe.
Indian Advisory School Board means an Indian advisory school board
established pursuant to 25 U.S.C. 5342-5347 prior to January 4, 1975.
Indian corporation means a legally established organization of
Indians chartered under State or Federal law and which is not included
within the definition of ``Tribal organization''.
Indian Education Committee means one of the entities specified by
Sec. 273.115.
Indian Tribe means any Indian Tribe, band, nation, rancheria,
pueblo, colony or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688) which is
federally recognized as eligible by the U.S. Government through the
Secretary for the special programs and services provided by the
Secretary to Indians because of their status as Indians.
Initial contract proposal and contract proposal means a proposal
for education contracts under the Johnson-O'Malley Act for the purpose
of financially assisting those efforts designed to meet the specialized
and unique educational needs of eligible Indian students, including
programs supplemental to the regular school program and school
operational support, where such support is necessary to maintain
established State educational standards.
Johnson-O'Malley Act means the Act of April 16, 1934 (48 Stat.
596), as amended by the Act of June 4, 1936 (49 Stat. 1458, 25 U.S.C.
452-456), and by the Act of January 4, 1975 (88 Stat. 2203), and
further amended by the Johnson-O'Malley Supplemental Indian Education
Program Modernization Act (Pub. L. 115-404), enacted December 31, 2018
(JOM Modernization Act).
Local Indian Committee means any committee established pursuant to
20 U.S.C. 7424(c)(4), which provides that the committee may be composed
of and selected by parents and family member of Indian children;
representatives of Indian Tribes or Indian lands; teachers in the
schools; and if appropriate, Indian students attending secondary
schools.
New contracting party means an entity that enters into a contract
under this Act after the date of enactment of the JOM Modernization Act
(Pub. L. 115-404), enacted December 31, 2018.
Operational support means those expenditures for school operational
costs in order to meet established State educational standards or
Statewide requirements and as specified in Sec. 273.126.
Previously private school means a school (other than a Federal
school formerly operated by the Bureau) that is operated primarily for
Indian students from age 3 years through grades 12; and, which at the
time of application is controlled, sanctioned, or chartered by the
government body(s) of an Indian Tribe(s).
Public school district means a school district that (a) serves
public elementary schools or public secondary schools; and (b) has
established or will establish local committees or is using a committee
or Indian advisory school board to approve supplementary or operational
support programs beneficial to Indian students.
Regional Director means the Bureau of Indian Affairs Regional
Director or Bureau of Indian Education Associate Deputy Director, as
applicable.
Reservation or Indian reservation means any Indian Tribe's
reservation, pueblo, colony, or rancheria, including former
reservations in Oklahoma, Alaska Natives regions established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688), and Indian
allotments.
School district or local education agency means that subdivision of
the State which contains the public elementary and secondary
educational institutions providing educational services and is
controlled by a duly elected board, commission, or similarly
constituted assembly.
Scope of work means a framework document that will outline the work
that will be performed under a contract and detail the expectations for
the Johnson-O'Malley program.
Secretary means the Secretary of the Interior.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico and each of the outlying areas, or any
political subdivision of the 50 States.
School official or school administrator means a person employed by
the school in an administration, supervisory, academic, or support
staff position.
[[Page 30659]]
Supplemental program means a program designed to meet the
specialized and unique educational needs of eligible Indian students
that may have resulted from socio-economic conditions of the parents,
from cultural or language differences or other factors. Programs may
also provide academic assistance to Indian students for the improvement
of student learning, increase the quality of instruction, and as
provided by Sec. 273.143(b).
System of record means a system of record that contains information
that is retrieved by an individual name or other unique identifiers.
Tribal government, Tribal governing body and Tribal Council means
the recognized governing body of an Indian Tribe.
Tribal organization means the recognized governing body of any
Indian Tribe or any legally established organization of Indians or
Tribes which is controlled, sanctioned, or chartered by such governing
body or bodies, or which is democratically elected by the adult members
of the Indian community to be served by such organization and which
includes the maximum participation of Indians in all phases of its
activities.
Subpart B--Program Eligibility & Applicability
Sec. 273.110 Who is eligible to request contracts under the Johnson-
O'Malley Act?
The following entities are eligible to enter into an education
contract under the Johnson-O'Malley Act for the purpose of financially
assisting efforts designed to meet the specialized and unique
educational needs of eligible Indian students, including supplemental
programs and school operational support, where such support is
necessary to maintain established State educational standards:
(a) Tribal organizations;
(b) States;
(c) Public school districts that:
(1) Serve public elementary schools or public secondary schools;
and
(2) Have a local school board composed of a majority of Indians or
have established or will establish an Indian Education Committee, as
described in Sec. 273.115 to approve supplementary or operational
support programs beneficial to Indian students; and
(d) Indian corporations.
Sec. 273.111 How do the requirements for Tribal organizations differ
from those for other eligible entities?
(a) States, public school districts, or Indian corporations must
comply with the requirements in this part.
(b) The requirements of this part apply to Tribal organizations,
except that Tribal organizations do not need to comply with:
(1) Sec. 273.113, regarding how funds can be used under the
Johnson O'Malley Act;
(2) Sec. Sec. 273.120-273.121, regarding approval of an education
plan by the Director;
(3) Sec. 273.125, regarding entering into a contract as a new
contracting party;
(4) Sec. Sec. 273.132-273.135, regarding review, approval, and
negotiation of the contract;
(5) Sec. 273.142, regarding advance payments;
(6) Any section in subpart H--General Contract Requirements (other
than the following sections, which still apply: Sec. 273.170,
regarding special program provisions to be included in a contract,
Sec. 273.172, regarding State employees' access to Tribal lands,
reservations or allotments, and Sec. 273.182, regarding penalties for
misusing funds or property);
(7) Any section in subpart I--Contract Renewal, Revisions, and
Cancellations (other than Sec. 273.194, regarding the Indian Education
Committee's authority to revoke contracts, which still applies);
(8) Any section in Subpart K--Appeals (other than Sec. 273.208).
(c) The contract proposal submitted by the Tribal organization must
meet the requirements in part 900 of this chapter, in addition to those
in Sec. 273.130. The requirements in part 900 of this chapter apply to
contracts with Tribal organizations, except for the provisions in
Sec. Sec. 900.240 through 900.256 of this chapter concerning
retrocession and reassumption of programs. If a Tribal organization
retrocedes a contract, the Bureau will then contract with a State,
public school district, or Indian corporation for the supplemental
programs or operational support.
Sec. 273.112 Who is an eligible Indian student under the Johnson-
O'Malley Act?
An Indian student is eligible for benefits provided by a Johnson
O'Malley contract if the student is:
(a) From age three (3) years through grade(s) twelve (12);
(b) Is not enrolled in a Bureau or sectarian operated school; and
(c) Is either:
(1) At least one-fourth (\1/4\) degree Indian blood descendant of a
member of a federally recognized Indian Tribe; or
(2) A member of a federally recognized Tribe.
Sec. 273.113 How can the funds be used under the Johnson-O'Malley
Act?
An eligible entity may use the funds available under the contract
to provide educational benefits to eligible Indian students to:
(a) Carry out programs or expand programs in existence before the
contract period that provide:
(1) Remedial instruction, counseling, and cultural programs;
(2) Selected courses related to the academic and professional
disciplines; or
(3) Important needs, such as school supplies and items that enable
recipients to participate in curricular and extra-curricular programs;
(b) Establish targeted and culturally sensitive dropout prevention
activities; and
(c) Purchase equipment to facilitate training for professional
trade skills and intensified college preparation programs.
Sec. 273.114 What programs may be contracted under the Johnson-
O'Malley Act?
All programs contracted under this part must:
(a) Be developed and approved in full compliance with the powers
and duties of the Indian Education Committee and as may be contained in
the Committee's organizational documents and bylaws.
(b) Be included as a part of the education plan.
Subpart C--Indian Education Committee
Sec. 273.115 Who determines the unique educational needs of eligible
Indian students?
When a school district to be affected by a contract(s) for the
education of Indians has a local school board composed of a majority of
Indians, the local school board may act as the Indian Education
Committee; otherwise, the parents of Indian children may elect an
Indian Education Committee from among their number or a Tribal
governing body(ies) of the Indian Tribe(s) affected by the contract(s)
may specify one of the following entities to serve as the Indian
Education Committee:
(a) A Local Indian Committee or Committees; or
(b) An Indian Advisory School Board or Boards.
Sec. 273.116 Does an Indian Education Committee need to establish
procedures and report to the Regional Director?
The Indian Education Committee and its members must establish
procedures under which the Committee serves. Such procedures must be
set forth in the Committee's organizational documents and by-laws.
(a) Each Committee must file a copy of its organizational documents
and by-
[[Page 30660]]
laws with the Regional Director, together with a list of its officers
and members.
(b) The existence of an Indian Education Committee may not limit
the continuing participation of the rest of the Indian community in all
aspects of programs contracted under this part.
Sec. 273.117 What are the powers and duties of the Indian Education
Committee?
Consistent with the purpose of the Indian Education Committee, each
such Committee is vested with the authority to undertake the activities
in paragraphs (a) through (d) of this section.
(a) Participate fully in the planning, development, implementation,
and evaluation of all programs, including both supplemental and
operational support, conducted under a contract or contracts pursuant
to this part. Such participation includes further authority to:
(1) Recommend curricula, including texts, materials, and teaching
methods to be used in the contracted program or programs;
(2) Approve budget preparation and execution;
(3) Recommend criteria for employment in the program;
(4) Nominate a reasonable number of qualified prospective
educational programmatic staff members from which the contractor would
be required to select; and
(5) Evaluate staff performance and program results and recommend
appropriate action to the contractor.
(b) Approve and disapprove all programs to be contracted under this
part. All programs contracted require the prior approval of the
appropriate Indian Education Committee.
(c) Secure a copy of the negotiated contract(s) that includes the
program(s) approved by the Indian Education Committee.
(d) Recommend to the Director through the appropriate awarding
official cancellation or suspension of a contract(s) that contains the
program(s) approved by the Indian Education Committee if the contractor
fails to permit the Committee to exercise its powers and duties.
Sec. 273.118 Are there additional authorities an Indian Education
Committee can exercise?
The organizational papers and by-laws of the Indian Education
Committee may include additional powers and duties that would permit
the Committee to:
(a) Participate in negotiations concerning all contracts;
(b) Make an annual assessment of the learning needs of Indian
children in the community affected;
(c) Have access to all reports, evaluations, surveys, and other
program and budget related documents determined necessary by the
Committee to carry out its responsibilities, subject only to the
provisions of Sec. 273.180;
(d) Request periodic reports and evaluations regarding the Indian
education program;
(e) Establish a local grievance policy and procedures related to
programs in the education plan;
(f) Meet regularly with the professional staff serving Indian
children and with the local education agency;
(g) Hold committee meetings on a regular basis which are open to
the public; and
(h) Have such additional powers as are consistent with these
regulations.
Subpart D--Education Plan
Sec. 273.119 What is an education plan and what must it include?
A prospective contractor in consultation with its Indian Education
Committee(s) must formulate an education plan that contains educational
objectives that adequately address the educational needs of the Indian
students and assures that the contract is capable of meeting such
objectives. The education plan must contain:
(a) The education programs developed and approved by the Indian
Education Committee(s);
(b) Educational goals and objectives that adequately address the
educational needs of the Indian students to be served by the contract;
(c) Procedures for addressing hearing grievances from Indian
students, parents, guardians, community members, and Tribal
representatives relating to the program(s) contracted. Such procedures
must provide for adequate advance notice of the hearing;
(d) Established State standards and requirements that must be
maintained in operating the contracted programs and services;
(e) A description of how the State standards and requirements will
be maintained;
(f) A requirement that the contractor comply in full with the
requirements concerning meaningful participation by the Indian
Education Committee;
(g) A requirement that education facilities receiving funds be open
to visits and consultations by the Indian Education Committee(s),
Tribal representatives, Indian parents and guardians in the community,
and by duly authorized representatives of the Federal and State
Governments;
(h) An outline of administrative and fiscal management procedures
to be used by the contractor;
(i) Justification for requesting funds for operational support. The
public school district must establish in its justification that it
meets the requirements given in Sec. 273.126(b). The information given
should include records of receipt of local, State, and Federal funds;
(j) Budget estimates and financial information needed to determine
program costs to contract for services. This includes, but is not
limited to, the following:
(1) State and district average operational cost per pupil;
(2) Other sources of Federal funding the applicant is receiving,
the amount received from each, the programs being funded, and the
number of eligible Indian students served by such funding;
(3) Administrative costs involved, total number of employees, and
total number of Indian employees;
(4) Costs that parents normally are expected to pay for each
school;
(5) Supplemental and operational funds outlined in a separate
budget, by line item, to facilitate accountability; and
(6) Total number of employees for each special program and number
of Indian employees for that program;
(k) The total enrollment of school or district, by age and grade
level;
(l) The eligible Indian enrollment--total and classification by
Tribal affiliation(s) and by age and grade level;
(m) The total number of school board members and number of Indian
school board members;
(n) Government equipment needed to carry out the contract;
(o) The period of contract term requested;
(p) The signature of the authorized representative of applicant;
and
(q) Written information regarding:
(1) Program goals and objectives related to the learning needs of
potential target students;
(2) Procedures and methods to be used in achieving program
objectives, including ways whereby parents, students and communities
have been involved in determining needs and priorities;
(3) Overall program implementation including staffing practices,
parental and community involvement, evaluation of program results, and
dissemination thereof; and
(4) Determination of staff and program effectiveness in meeting the
stated needs of target students.
[[Page 30661]]
Sec. 273.120 Does an education plan need to be approved by the
Regional Director?
The Secretary will not enter into any contract for the education of
Indians unless:
(a) The contractor has submitted an education plan to the Regional
Director; and
(b) The Regional Director has determined that the education plan
contains educational objectives that adequately address the educational
needs of the Indian students who are to be beneficiaries of the
contract, and that the contract is capable of meeting such objectives.
Sec. 273.121 When does the Regional Director approve the education
plan?
The Regional Director approves the education plan when a contractor
submits a contract proposal for funding.
Subpart E--Contract Proposal, Review, and Approval
Sec. 273.125 How may a new contracting party request a contract under
the Johnson-O'Malley Act?
Subject to the availability of appropriations, eligible entities
who have not previously entered into a contract for the Johnson-
O'Malley program may submit an initial contract proposal.
Sec. 273.126 What proposals are eligible for contracts under the
Johnson-O'Malley Act?
(a) Any proposal to contract for funding a supplemental program
will be considered an eligible proposal.
(b)(1) To contract for operational support, a public school
district is required to establish in the proposal that it:
(i) Cannot meet the applicable minimum State standards or
requirements without such funds;
(ii) Has made a reasonable tax effort with a mill levy at least
equal to the State average in support of educational programs;
(iii) Has fully utilized all other sources of financial aid,
including all forms of State aid and Public Law 874 payments, and the
State aid contribution per pupil is at least equal to the State
average;
(iv) Has at least 70 percent eligible Indian enrollment;
(v) Has clearly identified the educational needs of the students
intended to benefit from the contract;
(vi) Has made a good faith effort in computing State and local
contributions without regard to contract funds pursuant to this part;
and
(vii) Will not budget or project a deficit by using contract funds
pursuant to this part.
(2) The requirements given in paragraph (b)(1) of this section do
not apply to previously private schools.
Sec. 273.127 Can a contract include funds to support the duties of an
Indian Education Committee?
Programs developed or approved by the Indian Education Committee
may, at the option of such Committee, include funds for the performance
of Committee duties to include:
(a) Members' attendance at regular and special meetings, workshops
and training sessions, as the Committee deems appropriate.
(b) Other reasonable expenses incurred by the Committee in
performing its primary duties, including the planning, development,
implementation and evaluation of the program.
Sec. 273.128 How are contracts prioritized?
Priority will be given to contracts:
(a) Which would serve Indian students on or near reservations; and
(b) Where a majority of the Indian students will be members of the
Tribe(s) of those reservations.
Sec. 273.129 May the Regional Director reimburse a public school
district for educating non-resident Indian students?
The Regional Director may consider a contract proposal to reimburse
a public school district for the full per capita costs of educating
Indian students who meet all of the following:
(a) Are members of recognized Indian Tribes;
(b) Do not normally reside in the State in which the school
district is located; and
(c) Are residing in Federal boarding facilities for the purpose of
attending public schools within the school district.
Sec. 273.130 What is required in the contract proposal for funding?
A contract proposal must be in writing and contain the following:
(a) Name, address, and telephone number of the proposed contractor;
(b) Name, address, and telephone number of the Tribe(s) to be
served by the contract;
(c) Descriptive narrative of the contract proposal;
(d) The education plan approved by the Indian Education Committee;
(e) A separate budget outlining the Johnson-O'Malley funds for
operational support and/or supplemental programs, by line item, to
facilitate accountability;
(f) A clear identification of what educational needs the Johnson-
O'Malley funds requested for operational support will address; and
(g) Documentation of the requirements for operational support in
Sec. 273.126(b)(1).
Sec. 273.131 What is required for a Tribal request for a contract?
(a) An Indian Tribal governing body that desires that a contract be
entered into with a Tribal organization must notify the Regional
Director.
(b) The Tribal governing body has the option to contract with the
State, public school district, or Indian corporation.
Sec. 273.132 Who will review and approve the contract proposal?
Each approving official within each Bureau Region is authorized to
approve the contract(s) submitted by the State, public school district,
or Indian corporation to provide services to Indian children within
that approving official's region.
Sec. 273.133 What is the process for review and decision?
Upon receiving a contract proposal, the approving official will:
(a) Notify the applicant in writing that the contract proposal has
been received, within 14 days after receiving the contract proposal.
(b) Review the contract proposal for completeness and request,
within 20 days after receiving the contract proposal, any additional
information from the applicant which will be needed to reach a
decision.
(c) On receiving the contract proposal for operational support,
make a formal written determination and findings supporting the need
for such funds. In arriving at such a determination, the approving
official must be assured that each local education agency has made a
good faith effort in computing State and local contributions without
regard to funds requested.
(d) Assess the completed contract proposal to determine if the
proposal is feasible and if the proposal complies with the appropriate
requirements of the Johnson-O'Malley Act and this part.
(e) Approve or disapprove the contract proposal after fully
reviewing and assessing the application and any additional information
submitted by the applicant.
(f) Promptly notify the applicant in writing of the decision to
approve or disapprove the contract proposal.
(g) If the contract proposal is disapproved, the notice will give
the reasons for disapproval and the applicant's right to appeal
pursuant to Subpart K of this part.
[[Page 30662]]
Sec. 273.134 What is the timeframe for contract decision?
The approving official will approve or disapprove the contract
proposal within 90 days after the approving official receives the
contract proposal and any additional information requested. The
approving official may extend the 90-day deadline after obtaining the
written consent of the applicant.
Sec. 273.135 Who will negotiate the contract?
After the approving official has approved the contract proposal,
the awarding official, assisted by Bureau education personnel, will
negotiate the contract.
Subpart F--Funding Provisions
Sec. 273.140 What is the funding formula to distribute funds?
Funds will be distributed to contractors based upon a funding
formula. The funding formula is calculated using data obtained by the
Department of Education from the previous year.
(a) The funding formula to determine the funding to be distributed
to each contractor is the Weight Factor multiplied by the number of
eligible Indian students, where the Weight Factor is:
(1) The State average cost per pupil count divided by the national
average cost per pupil count; or
(2) A default weight factor of 1.3, if the calculation in paragraph
(a)(1) of this section results in a weight factor of less than 1.3.
(b) Notwithstanding any other provisions of the law, Federal funds
appropriated for the purpose will be allotted pro rata in accordance
with the distribution method outlined in this formula.
(c) For four fiscal years following the date of enactment of the
JOM Modernization Act (December 31, 2018):
(1) Existing contractors will not receive an amount that is less
than the amount received for Fiscal Year 2017 (the fiscal year
preceding the date of enactment of the JOM Modernization Act), unless:
(i) The existing contractor fails to submit a complete annual
report;
(ii) The Secretary has found that the existing contractor has
violated the terms of a contract under this part; or
(iii) The number of eligible students reported in the annual report
has decreased below the number of eligible students served by the
existing contractor in Fiscal Year 2017 (the fiscal year preceding the
date of enactment of the JOM Modernization Act). (2) Paragraph
(c)(1)(iii) of this section notwithstanding, no existing contractor
will receive an amount of funding per eligible student that is less
than the amount of funding per eligible Indian student that the
existing contractor received for Fiscal Year 2017 (the fiscal year
preceding the enactment of the JOM Modernization Act).
(d) Beginning December 31, 2022 (4 years after the December 31,
2018, date of enactment of the JOM Modernization Act), no contracting
party will receive for a fiscal year more than a 10 percent decrease in
funding per eligible Indian student from the previous year.
Sec. 273.141 Will funding be prorated?
All monies provided by a contract may be expended only for the
benefit of eligible Indian students. Where students other than eligible
Indian students participate in programs contracted, money expended
under the contract will be prorated to cover the participation of only
the eligible Indian students, except where the participation of non-
eligible students is so incidental as to be de minimis. Such de minimis
participation must be approved by the Indian Education Committee.
Sec. 273.142 Are advance payments on a contract allowed under the
Johnson-O'Malley Act?
Payments to States, public school districts and Indian corporations
will be made in advance or by way of reimbursement and in such
installments and on such conditions as the Regional Director deems
necessary to carry out the purposes of the Act.
Sec. 273.143 Must other Federal, State and local funds be used?
(a) Contract funds under this part supplement, and do not supplant,
Federal, State and local funds. Each contract must require that the use
of these contract funds will not result in a decrease in State, local,
or Federal funds that would be made available for Indian students if
there were no funds under this part.
(b) State, local and other Federal funds must be used to provide
comparable services to non-Indian and Indian students prior to the use
of contract funds.
(c) Except as hereinafter provided, the school lunch program of the
United States Department of Agriculture (USDA) constitutes the only
federally funded school lunch program for Indian students in public
schools. Where Indian students do not qualify to receive free lunches
under the National School Lunch Program of USDA because such students
are non-needy and do not meet the family size and income guidelines for
free USDA lunches, plans prepared pursuant to Sec. 273.119 may
provide, to the extent of funding available for Johnson-O'Malley
programs, for free school lunches for those students who do not qualify
for free USDA lunches but who are eligible students under Sec.
273.112.
Sec. 273.144 Can Johnson-O'Malley funds be used for capital outlay or
debt retirement?
In no instance may contract funds provided under this part be used
as payment for capital outlay or debt retirement expenses; except that,
such costs are allowable if they are considered to be a part of the
full per capita cost of educating eligible Indian students who reside
in Federal boarding facilities for the purpose of attending public
schools.
Sec. 273.145 How can funds be used for subcontractors?
The Bureau may make contract funds under the Johnson-O'Malley Act
available directly only to Tribal organizations, States, public school
districts, and Indian corporations. However, Tribal organizations,
States, public school districts, and Indian corporations receiving
funds may use the funds to subcontract for necessary services with any
appropriate individual, organization, or corporation.
Sec. 273.146 Can funds be used outside of schools?
Nothing in this part prevents the Regional Director from
contracting with Indian corporations who will expend all or part of the
funds in places other than the public or private schools in the
community affected.
Sec. 273.147 Are there requirements of equal quality and standard of
education?
Contracts with State education agencies or public school districts
receiving funds must provide educational opportunities to all Indian
children within that school district on the same terms and under the
same conditions that apply to all other students as long as it will not
affect the rights of eligible Indian children to receive benefits from
the supplemental programs. Public school districts receiving funds must
ensure that Indian children receive all aid from the State, and proper
sources other than the Johnson-O'Malley contract, which other schools
in the district and other school districts similarly situated in the
State are entitled to receive. In no instance may there be
discrimination against Indians or the schools enrolling Indians.
[[Page 30663]]
Subpart G--Annual Reporting Requirements
Sec. 273.150 Does an existing contracting party need to submit any
reports?
Each existing contracting party must submit an annual report based
on the JOM funding received and other contract-related reports as
required by the Regional Director.
Sec. 273.151 What information must the existing contracting party
provide in the annual report?
Existing contracting parties who receive Johnson-O'Malley funding
must submit the following information in the annual report:
(a) General information about the contractor;
(b) General information about the number and names of the schools;
(c) The number of eligible Indian students who were served using
amounts allocated under the contract during the previous fiscal year;
(d) An accounting of the amounts and purposes for which the
contract funds were expended;
(e) Information on the conduct of the program;
(f) A quantitative evaluation of the effectiveness of the contract
program in meeting the stated objectives contained in the educational
plans; and
(g) A complete accounting of actual receipts at the end of the
fiscal year for which the contract funds were expended.
Sec. 273.152 When is the annual report due?
All existing contracting parties must submit the annual report to
the awarding official on or before September 15 of each year and
covering the previous academic year.
Sec. 273.153 Who else needs a copy of the annual report?
All existing contracting parties must send copies of the annual
reports to the Indian Education Committee(s) and to the Tribe(s) under
the contract at the same time as the reports are sent to the awarding
official.
Sec. 273.154 What will happen if the existing contracting party fails
to submit an annual report?
Any existing contracting party that fails to submit the annual
report will receive no amounts under this Act for the fiscal year
following the academic year for which the annual report should have
been submitted.
Sec. 273.155 How will the existing contracting party know when
reports are due?
The awarding official will provide existing contracting parties
with timely information relating to:
(a) Initial and final reporting deadlines; and
(b) The consequences of failure to comply.
Sec. 273.156 Will technical assistance be available to comply with
the annual reporting requirements?
The Bureau will provide technical assistance and training on
compliance with the reporting requirements to existing contracting
parties. The Bureau will provide such technical assistance and training
on an ongoing and timely basis.
Sec. 273.157 What is the process for requesting technical assistance
and/or training?
(a) Existing contracting parties may request technical assistance
and/or training by addressing the request in writing to the Regional
Director.
(b) The Regional Director, or designee, will acknowledge receipt of
a request for technical assistance and/or training.
(c) No later than 30 days after receiving the original request, the
Regional Director will identify a point of contact and begin the
process of providing technical assistance and/or training. The Regional
Director and requesting contracting party will work together to
identify the form, substance, and timeline for the assistance.
Sec. 273.158 When should the existing contracting party request
technical assistance and/or training?
The existing contracting party is encouraged to request technical
assistance and/or training before annual reporting requirements are due
in order to avoid the consequences for failure to comply.
Sec. 273.159 If the existing contracting party reported a decrease of
eligible Indian students, how will funding be reduced?
Except as provided in Sec. 273.140(c)-(d) of this part, for four
fiscal years following the date of enactment of the JOM Modernization
Act (December 31, 2018) an existing contracting party's funding will
not be reduced to a level that is less than the amount of funding per
eligible Indian student that the existing contracting party received
for Fiscal Year 2017 (the fiscal year preceding the date of enactment
of the Johnson-O'Malley Modernization Act).
Sec. 273.160 Can the Secretary apply a ratable reduction in Johnson-
O'Malley program funding?
If the funds available under the Johnson-O'Malley Act for a fiscal
year are insufficient to pay the full amounts that all existing
contracting parties are eligible to receive under for the fiscal year,
the Secretary will ratably reduce those amounts for the fiscal year.
Sec. 273.161 What is the maximum decrease in funding allowed?
Beginning December 31, 2022 (4 years after the December 31, 2018,
date of enactment of the JOM Modernization Act), no contracting party
may receive for a fiscal year more than a 10 percent decrease in
funding per eligible Indian student from the previous fiscal year.
Subpart H--General Contract Requirements
Sec. 273.170 What special program provisions must be included in the
contract?
All contracts must contain the following:
(a) The education plan approved by the Indian Education
Committee(s);
(b) Any formal written determination and findings made by the
Regional Director supporting the need for operational support as
required by Sec. 273.133(c); and
(c) A provision that State, local, and other Federal Funds will be
used to provide comparable services to non-Indian and Indian students
prior to the use of Johnson-O'Malley funds for the provision of
supplementary program services to Indian children, as required in Sec.
273.143(b).
Sec. 273.171 Can a contractor make changes to a program approved by
an Indian Education Committee?
No program contracted may be changed from the time of its original
approval by the Indian Education Committee to the end of the contract
period without the prior approval, in writing, of the Indian Education
Committee.
Sec. 273.172 May State employees enter Tribal lands, reservations or
allotments?
In those States where Public Law 83-280 (18 U.S.C. 1162 and 28
U.S.C. 1360) do not confer civil jurisdiction, State employees may be
permitted to enter upon Indian Tribal lands, reservations, or
allotments in an official capacity in connection with a contract under
this part if the duly constituted governing body of the Tribe adopts a
resolution of consent for the following purposes:
(a) Inspecting school conditions in the public schools located on
Indian Tribal lands, reservations, or allotments; or
(b) Enforcing State compulsory school attendance laws against
Indian children, parents or persons standing in loco parentis.
[[Page 30664]]
Sec. 273.173 What procurement requirements apply to contracts?
States, public school districts, or Indian corporations wanting to
contract with the Bureau must comply with the applicable requirements
in the Federal Acquisition Regulations at 48 CFR part 1.
Sec. 273.174 Are there any Indian preference requirements for
contracts and subcontracts?
(a) Any contract made with a State, public school district, or
Indian corporation for the benefit of Indian students must require that
the contractor, to the greatest extent feasible:
(1) Give preference in and opportunities for employment and
training to Indians in connection with the administration of such
contract(s); and
(2) Give preference in the award of subcontracts to Indian
organizations and Indian-owned economic enterprises.
(b) All subcontractors employed by the contractor must, to the
extent possible, give preference to Indians for employment and training
and must include in their bid submission a plan to achieve maximum use
of Indian personnel.
Sec. 273.175 How will a Tribal governing body apply Indian preference
requirements for contracts and subcontracts?
A Tribal governing body may develop its own Indian preference
requirements for its contracts and subcontracts.
Sec. 273.176 May there be a use and transfer of Government property?
(a) The use of Government-owned facilities for school purposes may
be authorized when not needed for Government activities. Transfer of
title to such facilities (except land) may be arranged under the
provisions of the Act of June 4, 1953 (67 Stat. 41) subject to the
approval of the Tribal government if such property is located on a
reservation.
(b) In carrying out a contract, the Regional Director may, with the
approval of the Tribal government, permit a contractor to use existing
buildings, facilities, and related equipment and other personal
property owned by the Bureau within its jurisdiction under terms and
conditions agreed upon for their use and maintenance. The property at
the time of transfer must conform to the minimum standards established
by the Occupational Safety and Health Act of 1970 (84 Stat. 1590), as
amended (29 U.S.C. 651). Use of Government property is subject to the
following conditions:
(1) When nonexpendable Government property is turned over to public
school authorities or Indian corporations under a use permit, the
permittee must insure such property against damage by flood, fire,
rain, windstorm, vandalism, snow, and tornado in amounts and with
companies satisfactory to the Federal officer in charge of the
property. In case of damage or destruction of the property by flood,
fire, rain, windstorm, vandalism, snow, or tornado, the insurance money
collected may be expended only for repair or replacement of property.
Otherwise, insurance proceeds must be paid to the Bureau.
(2) If the public school authority is self-insured and can present
evidence of that fact to the Regional Director, insurance for lost or
damaged property will not be required. However, the public school
authority will be responsible for replacement of such lost or damaged
property at no cost to the Government or for paying the Government
enough to replace the property.
(3) The permittee will maintain the property in a reasonable state
of repair consistent with the intended use and educational purposes.
(c) The contractor may have access to existing Bureau records
needed to carry out a contract under this part, as follows:
(1) The Bureau will make the records available subject to the
provisions of the Freedom of Information Act (5 U.S.C. 552), as amended
by the Act of November 21, 1974 (Pub. L. 93-502, 88 Stat. 1561).
(2) The contractor may have access to needed Bureau records at the
appropriate Bureau office for review and making copies of selected
records.
(3) If the contractor needs a small volume of identifiable Bureau
records, the Bureau will furnish the copies to the contractor.
Sec. 273.177 Who will provide liability and motor vehicle insurance?
(a) States, school districts, and Indian corporations must obtain
public liability insurance under contracts entered into with the
Bureau, unless the Bureau approving official determines that the risk
of death, personal injury or property damage under the contract is
small and that the time and cost of procuring the insurance is great in
relation to the risk.
(b) Notwithstanding paragraph (a) of this section, any contract
which requires or authorizes, either expressly or by implication, the
use of motor vehicles must contain a provision requiring the State,
school district, or Indian corporation to provide liability insurance,
regardless of how small the risk.
(c) If the public school authority is self-insured and can present
evidence of that fact to the approving official, liability and motor
vehicle insurance will not be required.
Sec. 273.178 Are there contract recordkeeping requirements?
A contractor will be required to maintain a recordkeeping system
that allows the Bureau to meet its legal records program requirements
under the Federal Records Act (44 U.S.C. 3101 et seq.). Such a record
system must:
(a) Fully reflect all financial transactions involving the receipt
and expenditure of funds provided under the contract in a manner that
will provide accurate, current and complete disclosure of financial
status; correlation with budget or allowable cost schedules; and clear
audit facilitating data;
(b) Reflect the amounts and sources of funds other than Bureau
contract funds that may be included in the operation of the contract;
(c) Provide for the creation, maintenance, and safeguarding of
records of lasting value, including those involving individual rights,
such as permanent records and transcripts; and
(d) Provide for the orderly retirement of permanent records in
accordance with Department Records Schedule (Bureau of Indian Affairs
(075)), when there is no established system set up by the State, public
school district, or Indian corporation.
Sec. 273.179 Are there contract audit and inspection requirements?
(a) During the term of a contract and for three (3) years after the
project or undertaking is completed, the Regional Director, or any duly
authorized representative, must have access, for audit and examination
purposes, to any of the contractor's books, documents, papers, and
records that, in the Regional Director's or representative's opinion,
may be related or pertinent to the contract or any subcontract.
(b) The contractor is responsible for maintaining invoices,
purchase orders, canceled checks, balance sheets and all other
documents relating to financial transactions in a manner that will
facilitate auditing. The contractor is responsible for maintaining
files of correspondence and other documents relating to the
administration of the contract, properly separated from general records
or cross-referenced to general files.
(c) The contractor receiving funds is responsible for contract
compliance.
[[Page 30665]]
(d) The records involved in any claim or expenditure that has been
questioned must be further maintained until a final determination is
made on the questioned expenditures.
(e) The contractor and local school officials must make available
to each member of the Indian Education Committee and to members of the
public upon request: All contracts, non-confidential records concerning
students served by the program, reports, budgets, budget estimates,
plans, and other documents pertaining to administration of the contract
program in the preceding and current years. The contractor or local
school official must provide, free of charge, single copies of such
documents upon request.
Sec. 273.180 Are there disclosure requirements for contracts?
(a) Unless otherwise required by law, the Bureau may not place
restrictions on contractors that will limit public access to the
contractor's records except when records must remain confidential.
(b) A contractor must make all reports and information concerning
the contract available to the Indian people that the contract affects.
Reports and information may be withheld from disclosure only when both
of the following conditions exist:
(1) The reports and information fall within one of the following
exempt categories:
(i) Specifically required by statute or Executive Order to be kept
secret;
(ii) Commercial or financial information obtained from a person or
firm on a privileged or confidential basis; or
(iii) Personnel, medical, social, psychological, academic
achievement and similar files where disclosure would be a clearly
unwarranted invasion of personal privacy; and
(2) Disclosure is prohibited by statute or Executive Order or sound
grounds exist for using the exemption given in paragraph (b)(1) of this
section.
(c) A request to inspect or copy reports and information must be in
writing and reasonably describe the reports and information requested.
The request may be delivered or mailed to the contractor. Within 10
working days after receiving the request, the contractor must determine
whether to grant or deny the request and immediately notify the request
of the determination.
(d) The time limit for making a determination may be extended up to
an additional 10 working days for good reason. The requester must be
notified in writing of the extension, reasons for the extension, and
date on which the determination is expected to be made.
Sec. [thinsp]273.181 Are there Privacy Act requirements for
contracts?
(a) When a contractor operates a system of records to accomplish a
Bureau function, the contractor must comply with subpart K of 43 CFR
part 2 which implements the Privacy Act (5 U.S.C. 552a). Examples of
the contractor's responsibilities are:
(1) To continue maintaining systems of records declared by the
Bureau to be subject to the Privacy Act;
(2) To make such records available to individuals involved;
(3) To disclose an individual's record to third parties only after
receiving permission from the individual to whom the record pertains,
and in accordance with the exceptions listed in 43 CFR 2.231;
(4) To establish a procedure to account for access, disclosures,
denials, and amendments to records; and
(5) To provide safeguards for the protection of the records.
(b) The contractor may not, without prior approval of the Bureau:
(1) Discontinue or alter any established systems of records;
(2) Deny requests for notification or access of records; or
(3) Approve or deny requests for amendments of records.
(c) The contractor may not establish a new system of records
without prior approval of the Department of Interior and the Office of
Management and Budget.
(d) The contractor may not collect information about an individual
unless it is relevant or necessary to accomplish a purpose of the
Bureau as required by statute or Executive Order.
(e) The contractor is subject to 5 U.S.C. 552a(i)(1), which imposes
criminal penalties for knowingly and willfully disclosing a record
about an individual without the written request or consent of that
individual unless disclosure is permitted under one of the exceptions.
Sec. 273.182 Are there penalties for misusing funds or property?
If any officer, director, agent, or employee of, or connected with,
any contractor or subcontractor under this part embezzles, willfully
misapplies, steals, or obtains by fraud any of the funds or property
connected with the contract or subcontract, he or she will be subject
to the following penalties:
(a) If the amount involved does not exceed $100, person(s) will be
fined not more than $1,000 or imprisoned not more than one (1) year, or
both.
(b) If the amount involved exceeds $100, person(s) will be fined
not more than $10,000 or imprisoned for not more than two (2) years, or
both.
Sec. 273.183 Can the Secretary investigate a potential Civil Rights
Act violation?
In no instance may there be discrimination against Indians or
schools enrolling Indians. When informed by a complainant or through
its own discovery that a possible violation of title VI of the Civil
Rights Act of 1964 exists within a State school district receiving
funds, the Secretary will, in accordance with Federal requirements,
notify the Department of Education of the possible violation. The
Department Education will conduct an investigation into the matters
alleged. If the report of the investigation conducted by the Department
of Education discloses a failure or threatened failure to comply with
this part, and if the non-compliance cannot be corrected by informal
means, compliance with this part may be effected by the suspension or
termination of or refusal to contract or to continue financial
assistance under the Johnson-O'Malley Act or by any other means
authorized by law.
Subpart I--Contract Renewal, Revisions, and Cancellations
Sec. 273.191 How may a contract be renewed for Johnson-O'Malley
funding?
An awarding official will notify the existing contracting party in
advance of the contract's expiration and ask if the existing
contracting party wants to renew the contract. The renewal must be in
writing from the existing contracting party and the awarding official.
Sec. 273.192 What is required to renew a contract?
(a) The existing contracting party seeking to renew a contract will
submit to the awarding official:
(1) A written request to renew;
(2) The current education plan approved by the Indian Education
Committee, if expired;
(3) A new Tribal resolution, if the current one has expired or its
terms do not address renewal;
(4) A scope of work; and
(5) A budget outlining the Johnson-O'Malley funds for operational
support and/or supplemental programs, by line item, to facilitate
accountability.
(b) The awarding official will send the existing contracting party
an acknowledgment letter and specify if any information is required to
complete renewal package.
[[Page 30666]]
(c) The approving official will approve or disapprove a renewal
within 90 days after the approving official receives the renewal and
any additional information requested. The approving official may extend
the 90-day deadline after obtaining the written consent of the existing
contracting party.
Sec. [thinsp]273.193 May a contract be revised or amended?
Any contract may be revised or amended as deemed necessary to carry
out the purposes of the program being contracted.
(a) A contractor may submit a written request for a revision or
amendment of a contract to the awarding official.
(b) The written approval of the Indian Education Committee is
required if the contract revision or amendment will alter a program
that has been approved by the Indian Education Committee.
Sec. [thinsp]273.194 Does the Indian Education Committee have
authority to cancel contracts?
The Indian Education Committee may recommend to the Regional
Director, through the appropriate awarding official, cancellation or
suspension of a contract(s) that contains the program(s) approved by
the Indian Education Committee, if the contractor fails to permit such
Committee to exercise its powers and duties.
Sec. [thinsp]273.195 May a contract be cancelled for cause?
(a) Any contract may be cancelled for cause when the contractor
fails to perform the work called for under the contract or fails to
permit an Indian Education Committee to perform its duties.
(b) Before cancelling the contract, the Regional Director will
provide the contractor with written notice, including:
(1) The reasons why the Bureau is considering cancelling the
contract; and
(2) The contractor will be given an opportunity to bring its work
up to an acceptable level.
(c) If the contractor does not overcome the deficiencies in its
contract performance, the Bureau will cancel the contract for cause.
The Bureau will notify the contractor, in writing, of the cancellation.
The notice will give the reasons for the cancellation and the right of
the contractor to appeal under subpart K of this part.
(d) When a contract is cancelled for cause, the Bureau will attempt
to perform the work by another contract.
(e) Any contractor that has a contract cancelled for cause must
demonstrate that the cause(s) that led to the cancellation have been
remedied before it will be considered for another contract.
Subpart J--Responsibility and Accountability
Sec. 273.201 What is required for the Secretary to meet his or her
reporting responsibilities?
(a) The Secretary has the following reporting responsibilities to
the Committee on Indian Affairs in the Senate; the Subcommittee on
Interior, Environment, and Related Agencies of the Committee on
Appropriations of the Senate; the Subcommittee on Indian, Insular, and
Alaska Native Affairs of the Committee on Natural Resources of the
House of Representatives; and the Subcommittee on Interior,
Environment, and Related Agencies of the Committee on Appropriations of
the House of Representatives:
(1) In order to provide information about the Johnson-O'Malley
Program, the Bureau must obtain from all existing contracting parties
the most recent determination of the number of eligible Indian students
served by each contracting party.
(2) The Bureau will make recommendations on appropriate funding
levels for the program based on such determination.
(3) The Bureau will make an assessment of the contracts under this
Act.
(b) The Bureau will make such reports as described in subparagraph
(a) of this section publically available.
Sec. 273.202 Does this part include an information collection?
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. Responses 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 K--Appeals
Sec. 273.206 May a contract be appealed?
(a) A contractor may appeal:
(1) An adverse decision or action of the Bureau regarding a
contract; or
(2) A decision to cancel a contract for cause.
(b) The Secretary encourages contractors to seek all means of
dispute resolution before a formal appeal.
Sec. 273.207 How does a contractor request dispute resolution?
The contractor may request dispute resolution in writing to the
Regional Director.
(a) The Bureau has in place an alternative dispute resolution (ADR)
process.
(1) The ADR process is intended to be a supplement to, and not a
replacement for, the normal appeal process.
(2) Participation as a complainant in the ADR process is voluntary.
(3) Should a contractor participate in an ADR process, the pre-
complaint process may extend to 90 days.
(b) The ADR process may result in an informal resolution of the
complaint;
(c) If the ADR process does not result in an informal resolution of
the complaint, the contractor still has the right to continue to pursue
an appeal.
Sec. 273.208 How does a Tribal organization request an appeal?
A Tribal organization may request an appeal pursuant to Part 900 of
this Chapter.
Sec. 273.209 How does a State, public school district, or an Indian
corporation request an appeal?
The State, public school district, or an Indian corporation may
request an appeal by filing an appeal with the Civilian Board of
Contract Appeals under the Contract Disputes Act, 41 U.S.C. 7101-7109,
no later than 90 calendar days after the date the contractor receives
the decision.
Dated: June 6, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-13632 Filed 6-26-19; 8:45 am]
BILLING CODE 4337-15-P
