Education Contracts Under Johnson-O'Malley Act, 30647-30666 [2019-13632]

Download as PDF Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 43. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. 44. All comments will be placed in the Commission’s public files and may be viewed, printed, or downloaded 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. jspears on DSK30JT082PROD with PROPOSALS VII. Document Availability 45. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission’s Home Page (http:// www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426. 46. From the Commission’s Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.User assistance is available for eLibrary and the Commission’s website during normal business hours from the Commission’s Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502–8371, TTY (202) 502–8659. Email the Public Reference Room at public.referenceroom@ferc.gov. By direction of the Commission. VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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: http:// 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: PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 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 http:// 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 E:\FR\FM\27JNP1.SGM 27JNP1 30648 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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. jspears on DSK30JT082PROD with PROPOSALS 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 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). E:\FR\FM\27JNP1.SGM 27JNP1 jspears on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 30649 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 E:\FR\FM\27JNP1.SGM 27JNP1 30650 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 jspears on DSK30JT082PROD with PROPOSALS 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 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 E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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. jspears on DSK30JT082PROD with PROPOSALS 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? .......................................................................................... VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 —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. E:\FR\FM\27JNP1.SGM 27JNP1 30652 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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) .............................. jspears on DSK30JT082PROD with PROPOSALS 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. VerDate Sep<11>2014 20:32 Jun 26, 2019 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? Jkt 247001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\27JNP1.SGM 27JNP1 jspears on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 30653 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? VerDate Sep<11>2014 20:32 Jun 26, 2019 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. Jkt 247001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 30654 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 jspears on DSK30JT082PROD with PROPOSALS 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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.). PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 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 E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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. jspears on DSK30JT082PROD with PROPOSALS 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 30656 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 jspears on DSK30JT082PROD with PROPOSALS 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? VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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? PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 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? E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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? jspears on DSK30JT082PROD with PROPOSALS 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? VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 30657 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 E:\FR\FM\27JNP1.SGM 27JNP1 jspears on DSK30JT082PROD with PROPOSALS 30658 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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. VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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, PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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 jspears on DSK30JT082PROD with PROPOSALS § 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. VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 (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 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 30659 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- E:\FR\FM\27JNP1.SGM 27JNP1 30660 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules 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? jspears on DSK30JT082PROD with PROPOSALS 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; VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 (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 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules § 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. VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 30661 (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 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 (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. E:\FR\FM\27JNP1.SGM 27JNP1 30662 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules § 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 VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 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 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules (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: VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 § 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 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 30663 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. E:\FR\FM\27JNP1.SGM 27JNP1 30664 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules § 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: VerDate Sep<11>2014 20:32 Jun 26, 2019 Jkt 247001 (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 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 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. E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules (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 VerDate Sep<11>2014 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. E:\FR\FM\27JNP1.SGM 27JNP1 30666 Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / Proposed Rules (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 VerDate Sep<11>2014 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 27JNP1

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]


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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.

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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: http://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 http://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).
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    \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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    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/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'').

------------------------------------------------------------------------
                                 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