Use of Bureau-Operated Schools by Third Parties Under Lease Agreements and Fundraising Activity by Bureau-Operated School Personnel, 65000-65008 [2020-21536]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Proposed Rules]
[Pages 65000-65008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21536]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 48

[201A2100DD; AAKC001030; A0A501010.999900]
RIN 1076-AF55


Use of Bureau-Operated Schools by Third Parties Under Lease 
Agreements and Fundraising Activity by Bureau-Operated School Personnel

AGENCY: Bureau of Indian Education, Interior.

ACTION: Proposed rule.

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SUMMARY: Congress authorized the Director of the Bureau of Indian 
Education (BIE or Bureau) to enter into agreements with third parties 
to lease the land or facilities of a Bureau-operated school in exchange 
for funding that benefits the school. This proposed rule establishes 
standards for the appropriate use of lands and facilities under a lease 
agreement, provisions for establishment and administration of 
mechanisms for the acceptance of consideration for the use and benefit 
of a school, accountability standards to ensure ethical conduct, and 
provisions for monitoring the amount and terms of consideration 
received, the manner in which the consideration is used, and any 
results achieved by such use. This proposed rule also establishes 
standards to implement authority provided by Congress for BIE personnel 
to fundraise on behalf of Bureau-funded schools.

DATES: Please submit written comments by December 14, 2020. If you wish 
to comment on the information collection requirements in this proposed 
rule, please note that the Office of Management and Budget (OMB) is 
required to make a decision concerning the collection of information 
contained in this proposed rule between 30 and 60 days after 
publication of this proposed rule in the Federal Register. Therefore, 
comments should be submitted to OMB by November 13, 2020. See the 
SUPPLEMENTARY INFORMATION section of this notice for dates of Tribal 
consultation sessions.

ADDRESSES: You may send comments, identified by RIN number 1076-AF55 by 
any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
     Email: [email protected]. Include RIN number 1076-AF55 
in the subject line of the message.
     Mail or Hand-Delivery/Courier: Office of Regulatory 
Affairs & Collaborative Action--Indian Affairs (RACA), U.S. Department 
of the Interior, 1849 C Street NW, Mail Stop 4660, Washington, DC 
20240.
    All submissions received must include the Regulatory Information 
Number (RIN) for this rulemaking (RIN 1076-AF55). All comments received 
will be posted without change to https://www.regulations.gov, including 
any personal information provided.
    Comments on the Paperwork Reduction Act information collections 
contained in this rule are separate from comments on the substance of 
the rule. Send your comments and suggestions on the information 
collection requirements to the Desk Officer for the Department of the 
Interior at OMB-OIRA at (202) 395-5806 (fax) or 
[email protected] (email). Please provide a copy of your 
comments to [email protected]. Please reference OMB Control Number 
1076-0187 in the subject line of your comments.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above

[[Page 65001]]

will not be included in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Proposed Rule
III. Tribal Consultation
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Background

    Public Law 112-74, as amended by Public Law 113-235 and Public Law 
114-113, authorizes the Director of BIE, or the Director's designee, to 
enter into agreements with public and private persons and entities 
allowing them to lease the land or facilities of a Bureau-operated 
school in exchange for consideration (in the form of funds) that 
benefits the school. The head of the school determines the manner in 
which the consideration will be used to benefit the school, as long as 
the use is for school purposes otherwise authorized by law. Congress 
provided that any funds obtained under this authority will not affect 
or diminish appropriations for the operation and maintenance of Bureau-
operated schools, and that no funds will be withheld from distribution 
to the budget of a school due to receipt of such funds.
    This public law also allows personnel of Bureau-operated schools to 
participate in fundraising activity for the benefit of a Bureau-
operated school in their official capacity, as part of their official 
duties.
    To carry out these public law provisions, the Act requires the 
Secretary of the Interior to promulgate regulations. The Act provides 
that the regulations must include standards for the appropriate use of 
Bureau-operated school lands and facilities by third parties under a 
rental or lease agreement; provisions for the establishment and 
administration of mechanisms for the acceptance of consideration for 
the use and benefit of a school; accountability standards to ensure 
ethical conduct; and provisions for monitoring the amount and terms of 
consideration received, the manner in which the consideration is used, 
and any results achieved by such use.

II. Summary of Proposed Rule

    This proposed rule would establish a new Code of Federal 
Regulations (CFR) part to implement the leasing and fundraising 
authority that Congress granted to BIE under Public Law 112-74, as 
amended by Public Law 113-235 and Public Law 114-113. The leasing 
provisions of this rule would apply only to the facilities and land of 
Bureau-operated schools. This proposed rule would not apply to public 
schools, Public Law 100-297 Tribally controlled grant schools, or 
Public Law 93-638 contract schools. This proposed rule would implement 
statutory leasing authority specific to leasing of Bureau-operated 
school facilities and land and be separate from the general statutory 
authority for leasing. To obtain approval of a lease of a Bureau-
operated facility or land, one would need to comply with this new 
regulation, rather than the more generally applicable regulations at 25 
CFR part 162. We note that nothing in this rule affects 25 CFR 31.2, 
which allows for use of Bureau-operated school facilities or land for 
community activities and adult education activities upon approval by 
the superintendent or officer-in-charge, where no consideration is 
received in exchange for the use of the facilities. The fundraising 
provisions of this proposed rule would apply only to employees of 
schools operated by the BIE.
    Subpart A of the proposed rule would set forth the purpose, 
definitions, and other general provisions applicable to both leasing 
and fundraising.
    Subpart B would establish the mechanisms and standards by which the 
Bureau may lease Bureau-operated school facilities and land to third 
parties. The proposed rule allows only the BIE Director or his or her 
designee to enter into leases and sets forth the standards the BIE 
Director (or designee) will use to determine whether to enter into a 
lease, including that the lease provides a net financial benefit to the 
school, that it meets certain standards (e.g., complies with the 
mission of the school, conforms to principles of good order and 
discipline), and ensures the lease does not compromise the safety and 
security of students and staff or damage facilities. This subpart also 
establishes what provisions a lease must include, what actions are 
necessary if permanent improvements are to be constructed under the 
lease, and how the Bureau will ensure compliance with the lease. This 
subpart provides that the Bureau may only accept funds (as opposed to 
in-kind consideration) as consideration for a lease and may only use 
the funds for school purposes. It establishes how the Director or his 
designee will determine what amount is proper for lease consideration, 
establishes the mechanics for lessees to pay consideration, and how the 
Bureau will process the funds. Bureau-operated school personnel would 
be required to report annually on any active lease to the Director and 
others, including an accounting of all expenditures and supporting 
documentation showing expenditures were made for school purposes.
    Subpart C of the proposed rule addresses fundraising activities by 
employees of Bureau-operated schools in their official capacity on 
behalf of those schools. (Nothing in this proposed rule affects 
fundraising activities by students). This subpart allows authorized 
personnel to spend a reasonable portion of his or her official duties 
fundraising. This subpart limits the types of fundraising an employee 
may conduct to ensure fundraising maintains the school's integrity, the 
Bureau's impartiality, and public confidence in the school. Certain 
approvals would be required before personnel may accept a donation on 
behalf of a school, and each Bureau-operated school that receives 
donations would be required to report annually to the Director and 
others, including an accounting of all expenditures and supporting 
documentation showing expenditures were made for school purposes.

III. Tribal Consultation

    The Department is hosting the following consultation session on 
this proposed rule:

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                Date                             Time                                Location
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Friday, November 13, 2020..........  2 p.m. Eastern Time........  Teleconference number: (888) 972-6716.
                                                                   Participant Passcode (Operator will answer):
                                                                   DOI.
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[[Page 65002]]

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant proposed rules. OIRA has 
determined that this proposed rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
It does not change current funding requirements and any economic 
effects on small entities would be fees charged for the use of the 
facilities, which must be tied to either fair market value or the costs 
to the Bureau of the lease and would not have a significant economic 
effect on the small entities.

C. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This proposed rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of the 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate on State, 
local, or Tribal governments or the private sector of more than $100 
million per year. The proposed rule does not have a significant or 
unique effect on State, local, or Tribal governments or the private 
sector. A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This proposed rule does not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630. A 
takings implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this 
proposed rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. A 
federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
proposed rule under the Department's consultation policy and under the 
criteria in Executive Order 13175 and have identified substantial 
direct effects on federally recognized Indian Tribes that will result 
from this rulemaking. The Department acknowledges that Tribes with 
children attending Bureau-operated schools have an interest in this 
proposed rule because it provides for consideration for the leasing of 
Bureau-operated schools and fundraising standards for employees of 
Bureau-operated schools. As such, the Department engaged Tribal 
government representatives by distributing a letter, dated June 19, 
2014, with a copy of the draft rule and requesting comment on the draft 
rule by July 31, 2014. The Department also published a proposed rule on 
June 21, 2016 (81 FR 40218) and hosted a listening session and two 
teleconference consultations on the rule, but received no substantive 
comments. The Department will be hosting a consultation session to 
discuss this proposed rule (see Section III. Tribal Consultation, of 
this preamble for details).

I. Paperwork Reduction Act

    This proposed rule contains new information collections. All 
information collections require approval under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid Office of Management and Budget (OMB) 
control number. The Department is seeking approval of a new information 
collection, as follows.
    Brief Description of Collection: The Bureau of Indian Education 
(BIE) is proposing to establish standards for the appropriate use of 
lands and facilities by third parties. These standards address the 
following: The execution of lease agreements; the establishment and 
administration of mechanisms for the acceptance of consideration for 
the use and benefit of a Bureau-operated school; the assurance of 
ethical conduct; and monitoring the amount and terms of consideration 
received, the manner in which the consideration is used, and any 
results achieved by such use. The paperwork burden associated with the 
proposed rule results from lease provisions; lease violations; and 
assignments, subleases, or mortgages of leases.
    Title: Use of Bureau-Operated Schools by Third Parties.
    OMB Control Number: 1076-0187.
    Form Number: None.
    Type of Review: New collection.
    Respondents/Affected Public: Individuals and Private Sector.
    Total Estimated Number of Annual Respondents: 17.
    Total Estimated Number of Annual Responses: 22.
    Estimated Completion Time per Response: One to three hours.
    Total Estimated Number of Annual Burden Hours: 64 hours.
    Respondents' Obligation: Required to obtain a benefit.
    Frequency of Response: Annually.
    Total Estimated Annual Non-Hour Burden Cost: $0.

[[Page 65003]]



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                                                                      Annual       Burden hours    Total annual
      CFR cite             Description        Number respondents     responses     per response    burden hours
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48.105..............  Provisions of leases   10.................              10               3              30
                       (businesses).
48.105..............  Provisions of leases   2..................               2               3               6
                       (individuals).
48.105..............  Provisions of leases   5..................               5               3              15
                       (governments).
48.106..............  Covered improvements   2 (subset).........               2               3               6
                       under lease
                       (businesses).
48.106..............  Covered improvements   1 (subset).........               1               3               3
                       under lease
                       (governments).
48.117..............  Violations of leases.  1 (subset).........               1               1               1
48.119..............  Assignments,           1 (subset).........               1               3               3
                       subleases, and
                       mortgages of leases.
                                            --------------------------------------------------------------------
    Total...........  .....................  17.................              22             N/A              64
----------------------------------------------------------------------------------------------------------------

    OMB Control Number: 1090-0009.
    Title: Donor Certification Form.
    Brief Description of Collection: This information will provide 
Department staff with the basis for beginning the evaluation as to 
whether the Department will accept the proposed donation. The 
authorized employee will receive the donor certification form in 
advance of accepting the proposed donation where the donation is valued 
at $25,000 or more. The employee will then review the totality of 
circumstances surrounding the proposed donation to determine whether 
the Department can accept the donation and maintain its integrity, 
impartiality, and public confidence. We expect to receive 25 responses 
to this information collection annually. The burden associated with 
this information collection is already reflected in the approval of OMB 
Control Number 1090-0009.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Written comments and recommendations for the proposed information 
collection should be sent within 30 days of publication of this notice 
to www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 30-day Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to [email protected]. Please reference OMB 
Control Number 1076-0187 in the subject line of your comments.''

J. National Environmental Policy Act

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. A 
detailed statement under the National Environmental Policy Act of 1969 
(NEPA) is not required because the environmental effects of this 
proposed rule are too speculative to lend themselves to meaningful 
analysis and will later be subject to the NEPA process, unless covered 
by a categorical exclusion. (For further information see 43 CFR 
46.210(i)). We have also determined that the rule does not involve any 
of the extraordinary circumstances listed in 43 CFR 46.215 that would 
require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

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

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all proposed rules in 
plain language. This means that each proposed rule we publish must:
    a. Be logically organized;
    b. Use the active voice to address readers directly;
    c. Use clear language rather than jargon;
    d. Be divided into short sections and sentences; and
    e. Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

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

List of Subjects in 25 CFR Part 48

    Educational facilities, Indians--education.


0
For the reasons given in the preamble, the Department of the Interior 
proposes to amend 25 CFR chapter 1, subchapter E, by adding part 48 to 
read as follows:

PART 48--LEASES OF LAND OR FACILITIES OF BUREAU-OPERATED SCHOOLS 
AND FUNDRAISING ACTIVITIES AT BUREAU-OPERATED SCHOOLS

Subpart A--General Provisions
Sec.
48.1 What is the purpose of this part?
48.2 What is the scope of this part?
48.3 What definitions apply to terms in this part?
48.4 What accounting standards will the Bureau use in monitoring the 
receipt, holding, and use of funds?
48.5 How does the Paperwork Reduction Act affect this part?

[[Page 65004]]

Subpart B--Leasing of Bureau-Operated Facilities
48.101 Who may enter into a lease on behalf of a Bureau-operated 
school?
48.102 With whom may the Director enter into a lease?
48.103 What facilities may be leased?
48.104 What standards will the Director use in determining whether 
to enter into a lease?
48.105 What provisions must a lease contain?
48.106 May a lessee construct permanent improvements under a lease?
48.107 What consideration may a Bureau-operated school accept in 
exchange for a lease?
48.108 How will the Bureau determine appropriate consideration for a 
lease?
48.109 Who may use the funds?
48.110 For what purposes may a Bureau-operated school use the funds?
48.111 How does a lessee pay the Bureau-operated school under a 
lease?
48.112 How are lease payments processed?
48.113 Will late payment charges or special fees apply to delinquent 
lease payments?
48.114 How long will the funds be available?
48.115 How will the Bureau monitor the results achieved by the use 
of funds received from leases?
48.116 Who may investigate compliance with a lease?
48.117 What will the Bureau do about a violation of a lease?
48.118 What will the Bureau do if a lessee does not cure a lease 
violation on time?
48.119 May a lease be assigned, subleased, or mortgaged?
Subpart C--Fundraising Activities
48.201 To whom does this subpart apply?
48.202 May employees fundraise?
48.203 How much time may employees spend fundraising?
48.204 For what school purposes may employees fundraise?
48.205 What are the limitations on fundraising?
48.206 What approvals are necessary to accept a donation?
48.207 How may the donations solicited under this subpart be used?
48.208 How must the Bureau-operated school report donations?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9; Pub. L. 112-74; Pub. L. 
113-235; Pub. L. 114-113.

Subpart A--General Provisions


Sec.  48.1   What is the purpose of this part?

    (a) The purpose of this part is to set forth processes and 
procedures to:
    (1) Implement authorization for the Director or his or her designee 
to lease or rent Bureau-operated school facilities in exchange for 
consideration in the form of funds;
    (2) Establish mechanisms and standards for leasing or renting of 
Bureau-operated facilities, and management and use of the funds 
received as consideration;
    (3) Describe allowable fundraising activities by the employees of 
Bureau-operated schools;
    (4) Set accountability standards to ensure ethical conduct; and
    (5) Establish provisions for monitoring the amount and terms of 
consideration received, the manner in which the consideration is used, 
and any results achieved by such use.
    (b) Nothing in this part affects:
    (1) 25 CFR 31.2, allowing for use of Federal Indian school 
facilities for community activities and adult education activities upon 
approval by the superintendent or officer-in-charge, where no 
consideration is received in exchange for the use of the facilities;
    (2) 26 CFR 31.7 and 36.43(g), establishing guidelines for student 
fundraising; or
    (3) The implementing regulations for the Federal Employees Quarters 
Facilities Act, 5 U.S.C. 5911, at 41 CFR part 114-51 and policies at 
Departmental Manual part 400, chapter 3; or
    (4) The use of Bureau-operated school facilities or lands by other 
Federal agencies so long as the use is memorialized in a written 
agreement between the Bureau and the other Federal agency.


Sec.  48.2  What is the scope of this part?

    The leasing provisions of this part apply only to facilities of 
schools operated by the Bureau and the fundraising provisions of this 
part apply only to employees of schools operated by the Bureau. This 
part does not apply to public schools, Public Law 100-297 Tribally 
controlled schools, or Public Law 93-638 contract or grant schools.


Sec.  48.3   What definitions apply to terms in this part?

    Assistant Secretary means the Assistant Secretary--Indian Affairs 
or his or her designee.
    Bureau means the Bureau of Indian Education.
    Bureau-operated school means a day or boarding school, a dormitory 
for students attending a school other than a Bureau school, or an 
institution of higher learning and associated facilities operated by 
the Bureau. This term does not include public schools, Public Law 100-
297 Tribally controlled schools, or Public Law 93-638 contract or grant 
schools.
    Construction means construction of new facilities, modification, or 
alteration of existing grounds or building structures.
    Days means calendar days unless otherwise specified.
    Director means the Director, Bureau of Indian Education.
    Director's designee or designee means the Associate Deputy Director 
and/or the Education Program Administrator.
    Department means the Department of the Interior.
    Donation means something of value (e.g., funds, land, personal 
property) received from a non-Federal source without consideration or 
an exchange of value.
    Employee means an employee of the Bureau working at a Bureau-
operated school.
    Facilities means land or facilities authorized for use by a Bureau-
operated school.
    Funds means money.
    Fundraising means requesting donations, selling items, or providing 
a service, activity, or event to raise funds, except that writing a 
grant proposal to secure resources to support school purposes is not 
fundraising. Fundraising does not include requests for donated 
supplies, materials, in-kind services, or funds (e.g., fees for school 
activities) that schools traditionally require or request parents and 
guardians of students to provide.
    Head of the School means the Principal, President, School 
Supervisor, Residential Life Director, Superintendent of the School, or 
equivalent head of a Bureau-operated school where facilities are being 
leased under this Part.
    Lease means a written contract or rental agreement executed in 
accordance with this part, granting the possession and use of 
facilities at a Bureau-operated school to a private or public person or 
entity in return for funds.
    Private person or entity means an individual who is not acting on 
behalf of a public person or entity and includes, but is not limited 
to, private companies, nonprofit organizations and any other entity not 
included in the definition of public person or entity.
    Public person or entity means a State, local, Federal, or Tribal 
governmental agency or unit thereof.
    School purposes means lawful activities and purchases for the 
benefit of students and school operations including, but not limited 
to: Academic, residential, and extra-curricular programs during or 
outside of the normal school day and year; books, supplies or equipment 
for school use; building construction, maintenance and/or operations; 
landscape construction, modifications, or maintenance on the school 
grounds.

[[Page 65005]]

Sec.  48.4  What accounting standards will the Bureau use in monitoring 
the receipt, holding, and use of funds?

    The Bureau will use applicable Federal financial accounting rules 
in monitoring the receipt, holding, and use of funds.


Sec.  48.5  How does the Paperwork Reduction Act affect this part?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-NEW and OMB Control Number 1090-0009. 
Response is required to obtain a benefit. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
Control Number.

Subpart B--Leasing of Bureau-Operated Facilities


Sec.  48.101  Who may enter into a lease on behalf of a Bureau-operated 
school?

    Only the Director or the Director's designee may enter into leases.


Sec.  48.102  With whom may the Director enter into a lease?

    The Director or designee may lease to public or private persons or 
entities who meet the requirements of this part that are applicable to 
leasing activities.


Sec.  48.103   What facilities may be leased?

    Any portion of a Bureau-operated school facility may be leased as 
long as the lease does not interfere with the normal operations of the 
Bureau-operated school, student body, or staff, and otherwise meets 
applicable requirements of this part.


Sec.  48.104  What standards will the Director use in determining 
whether to enter into a lease?

    (a) The Director or designee will make the final decision regarding 
approval of a proposed lease. The Director or designee must ensure that 
the lease provides appropriate consideration that benefits to the 
school and that the Head of the School has certified, after 
consultation with the school board or board of regents, that the lease 
meets the standards in paragraph (b) of this section.
    (b) The lease must:
    (1) Comply with the mission of the school;
    (2) Conform to principles of good order and discipline;
    (3) Not interfere with existing or planned school activities or 
programs;
    (4) Not interfere with school board staff and/or community access 
to the school;
    (5) Not allow contact or access to students inconsistent with 
applicable law;
    (6) Not result in any Bureau commitments after the lease expires; 
and
    (7) Not compromise the safety and security of students and staff or 
damage facilities.
    (c) The Director's or designee's decision on a proposed lease is 
discretionary and is not subject to review or appeal under part 2 of 
this chapter or otherwise.


Sec.  48.105   What provisions must a lease contain?

    (a) All leases of Bureau-operated school facilities must identify 
at a minimum:
    (1) The facility, or portion thereof, being leased;
    (2) The purpose of the lease and authorized uses of the leased 
facility;
    (3) The parties to the lease;
    (4) The term of the lease, and any renewal term, if applicable;
    (5) The ownership of permanent improvements and the responsibility 
for constructing, operating, maintaining, and managing permanent 
improvements, and meeting due diligence requirements under Sec.  
48.106;
    (6) Payment requirements and late payment charges, including 
interest;
    (7) That lessee will maintain insurance sufficient to cover 
negligence or intentional misconduct occurring on the leasehold; and
    (8) Any bonding requirements, as required in the discretion of the 
Director. If a performance bond is required, the lease must state that 
the lessee must obtain the consent of the surety for any legal 
instrument that directly affects their obligations and liabilities.
    (b) All leases of Bureau-operated facilities must include, at a 
minimum, the following provisions:
    (1) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises;
    (2) The lessee must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements;
    (3) The Bureau has the right, at any reasonable time during the 
term of the lease and upon reasonable notice to enter the leased 
premises for inspection and to ensure compliance; and
    (4) The Bureau may, at its discretion, treat as a lease violation 
any failure by the lessee to cooperate with a request to make 
appropriate records, reports, or information available for inspection 
and duplication.
    (c) Unless the lessee would be prohibited by law from doing so, the 
lease must also contain the following provisions:
    (1) The lessee holds the United States harmless from any loss, 
liability, or damages resulting from the lessee's, its invitees', and 
licensees' use or occupation of the leased facility; and
    (2) The lessee indemnifies the United States against all 
liabilities or costs relating to the use, handling, treatment, removal, 
storage, transportation, or disposal of hazardous materials, or the 
release or discharge of any hazardous material from the leased premises 
that occurs during the lease term, regardless of fault with the 
exception that the lessee is not required to indemnify the United 
States for liability or cost arising from the United States' negligence 
or willful misconduct.


Sec.  48.106  May a lessee construct permanent improvements under a 
lease?

    (a) The lessee may construct permanent improvements under a lease 
of a Bureau-operated facility only if the lease contains the following 
provisions:
    (1) A description of the type and location of any permanent 
improvements to be constructed by the lessee and a general schedule for 
construction of the permanent improvements, including dates for 
commencement and completion of construction;
    (2) Specification of who owns the permanent improvements the lessee 
constructs during the lease term and specifies whether each specific 
permanent improvement the lessee constructs will:
    (i) Remain on the leased premises, upon the expiration, 
cancellation, or termination of the lease, in a condition satisfactory 
to the Director, and become the property of the Bureau-operated school;
    (ii) Be removed within a time period specified in the lease, at the 
lessee's expense, with the leased premises to be restored as closely as 
possible to their condition before construction of the permanent 
improvements; or
    (iii) Be disposed of by other specified means.
    (3) Due diligence requirements that require the lessee to complete 
construction of any permanent improvements within the schedule 
specified in the lease or general schedule of construction, and a 
process for changing the schedule by mutual consent of the parties.
    (i) If construction does not occur, or is not expected to be 
completed, within the time period specified in the lease, the lessee 
must provide the Director

[[Page 65006]]

with an explanation of good cause as to the nature of any delay, the 
anticipated date of construction of facilities, and evidence of 
progress toward commencement of construction.
    (ii) Failure of the lessee to comply with the due diligence 
requirements of the lease is a violation of the lease and may lead to 
cancellation of the lease.
    (b) The lessee must prepare the required information and analyses, 
including information to facilitate the Bureau's analysis under 
applicable environmental and cultural resource requirements.
    (c) The Bureau may take appropriate enforcement action to ensure 
removal of the permanent improvements and restoration of the premises 
at the lessee's expense before or after expiration, termination, or 
cancellation of the lease. The Bureau may collect and hold the 
performance bond or alternative form of security until removal and 
restoration are completed.


Sec.  48.107  What consideration may a Bureau-operated school accept in 
exchange for a lease?

    A Bureau-operated school may accept only funds as consideration for 
a lease.


Sec.  48.108  How will the Bureau determine appropriate consideration 
for a lease?

    The Bureau will determine what consideration is appropriate for a 
lease by considering, at a minimum, the following factors:
    (a) Fair market value or the indirect and direct costs of the 
lease; and
    (b) Whether there will be a net financial benefit to the school.


Sec.  48.109  Who may use the funds?

    The Bureau-operated school may use funds, including late payment 
charges, received as compensation for leasing that school's facilities.


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

    The Bureau-operated school must use the funds for school purposes.


Sec.  48.111  How does a lessee pay the Bureau-operated school under a 
lease?

    A lessee must pay consideration and any late payment charges due 
under the lease to the Bureau by certified check, money order, or 
electronic funds transfer made out to the Bureau and containing 
identifying information as provided for in the lease.


Sec.  48.112  How are lease payments processed?

    The Bureau will deposit all funds received as lease consideration 
or late payment charge into the designated Treasury account. Once the 
Bureau deposits the funds, the Bureau will work with the Bureau-
operated school to make the funds available for school purposes.


Sec.  48.113  Will late payment charges or special fees apply to 
delinquent lease payments?

    (a) Late payment charges will apply as specified in the lease. The 
failure to pay these amounts will be treated as a lease violation.
    (b) The Bureau may assess the following special fees to cover 
administrative costs incurred by the United States in the collection of 
the debt, if rent is not paid in the time and manner required, in 
addition to late payment charges that must be paid under the terms of 
the lease:

                        Table 1 to Paragraph (b)
------------------------------------------------------------------------
       The lessee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00.............................  Any dishonored check.
(2) $15.00.............................  Processing of each notice or
                                          demand letter.
(3) 18 percent of balance due..........  Treasury processing following
                                          referral for collection of
                                          delinquent debt.
------------------------------------------------------------------------

Sec.  48.114  How long will the funds be available?

    Funds generated under these regulations remain available to the 
recipient school until expended, notwithstanding 31 U.S.C. 3302, in 
accordance with the Bureau-operated school's plan for expending the 
funds for school purposes.


Sec.  48.115  How will the Bureau monitor the results achieved by the 
use of funds received from leases?

    The Head of the School for each Bureau-operated school that has 
active leases under this part must submit an annual report to the 
Director, the designee, and the Office of Facilities Management and 
Construction. The report must contain the following information:
    (a) A list of leases and the facilities covered by each lease;
    (b) An accounting of receipts from each lease;
    (c) An accounting of all expenditures and the supporting 
documentation showing that expenditures were made for school purposes;
    (d) A report of the benefits provided by the leasing program as a 
whole;
    (e) A certification that the terms of each lease were met or, if 
the terms of a lease were not met, the actions taken as a result of the 
noncompliance; and
    (f) Any unexpected expenses incurred.


Sec.  48.116  Who may investigate compliance with a lease?

    The Head of the School or his designee or any Bureau employee may 
enter the leased facility at any reasonable time, upon reasonable 
notice, and consistent with any notice requirements under the lease to 
determine if the lessee is in compliance with the requirements of the 
lease.


Sec.  48.117  What will the Bureau do about a violation of a lease?

    (a) If the Bureau determines there has been a violation of the 
conditions of a lease, it will promptly send the lessee and any surety 
and mortgagee a notice of violation, by certified mail, return receipt 
requested.
    (1) The notice of violation will advise the lessee that, within 10 
business days of the receipt of a notice of violation, the lessee must:
    (i) Cure the violation and notify the Bureau in writing that the 
violation has been cured;
    (ii) Dispute the determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (2) The notice of violation may order the lessee to cease 
operations under the lease.
    (b) A lessee's failure to pay compensation in the time and manner 
required by the lease is a violation of the lease, and the Bureau will 
issue a notice of violation in accordance with this section requiring 
the lessee to provide adequate proof of payment.
    (c) The lessee and its sureties will continue to be responsible for 
the obligations in the lease until the lease expires, or is terminated 
or cancelled.

[[Page 65007]]

Sec.  48.118  What will the Bureau do if a lessee does not cure a lease 
violation on time?

    (a) If the lessee does not cure a violation of a lease within the 
required time period, or provide adequate proof of payment as required 
in the notice of violation, the Bureau will take one or more of the 
following actions:
    (1) Cancel the lease;
    (2) Invoke other remedies available under the lease or applicable 
law, including collection on any available performance bond or, for 
failure to pay compensation, referral of the debt to the Department of 
the Treasury for collection; or
    (3) Grant the lessee additional time in which to cure the 
violation.
    (b) The Bureau may take action to recover unpaid compensation and 
any associated late payment charges, and does not have to cancel the 
lease or give any further notice to the lessee before taking action to 
recover unpaid compensation. The Bureau may still take action to 
recover any unpaid compensation if it cancels the lease.
    (c) If the Bureau decides to cancel the lease, it will send the 
lessee and any surety and mortgagee a cancellation letter by certified 
mail, return receipt requested, within 5 business days of our decision. 
The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the lessee of the amount of any unpaid 
compensation or late payment charges due under the lease;
    (3) Notify the lessee of the lessee's right to appeal to the 
Director if the decision is made by the Director's designee, or to the 
Interior Board of Indian Appeals if the decision is made by the 
Director, including the possibility that the official to whom the 
appeal is made may require the lessee to post an appeal bond;
    (4) Order the lessee to vacate the property within 31 days of the 
date of receipt of the cancellation letter, if an appeal is not filed 
by that time; and
    (5) Order the lessee to take any other action the Bureau deems 
necessary to protect the facility.
    (d) The Bureau may invoke any other remedies available under the 
lease, including collecting on any available performance bond.


Sec.  48.119  May a lease be assigned, subleased, or mortgaged?

    A lessee may assign, sublease, or mortgage a lease only with the 
approval of the Director.

Subpart C--Fundraising Activities


Sec.  48.201  To whom does this subpart apply?

    This subpart applies to employees that fundraise for a Bureau-
operated school. This subpart does not apply to students who fundraise.


Sec.  48.202  May employees fundraise?

    (a) Employees may fundraise for school purposes as part of their 
official duties using their official title, position and authority, so 
long as:
    (1) The Director or the Director's designee approves the 
fundraising in advance and certifies that it complies with this 
subpart; and
    (2) The employees ensure the fundraising conforms to the 
requirements of this subpart.
    (b) Nothing in this part allows participation in political or other 
activities prohibited by law.


Sec.  48.203   How much time may employees spend fundraising?

    Each authorized employee may spend no more than a reasonable 
portion of his or her official duty time as an employee in any calendar 
year fundraising.


Sec.  48.204  For what school purposes may employees fundraise?

    Employees may fundraise for school purposes as defined in Sec.  
48.3.


Sec.  48.205  What are the limitations on fundraising?

    (a) Fundraising may not include any gaming or gambling activity.
    (b) Fundraising may not violate, or create an appearance of 
violating, any applicable ethics statutes or regulations.
    (c) Donations from fundraising must maintain the integrity of the 
Bureau-operated school programs and operations, including but not 
limited to the following considerations:
    (1) The donation may not, and may not appear, to be an attempt to 
influence the exercise of any regulatory or other authority of the 
Bureau;
    (2) The donation may not require commitment of current or future 
funding that is not planned or available;
    (3) The donation must be consistent with, and may not otherwise 
circumvent, law, regulation, or policy;
    (4) The Bureau-operated school must be able to properly utilize or 
manage any donated real or personal property within policy, 
programmatic, and management goals;
    (5) Any conditions on the donation must be consistent with 
authorized school purposes and any relevant policy or planning 
documents;
    (6) The donation may not be used by the donor to state or imply 
endorsement by the Bureau or Bureau-operated school of the donor or the 
donor's products or services;
    (7) The donation, if it consists of personnel or funding to hire 
personnel, must be structured such that the donated or funded personnel 
do not inappropriately influence any Bureau regulatory action or other 
significant decision.
    (d) The fundraising and donation must maintain the impartiality, 
and appearance of impartiality, of the Bureau, Bureau-operated school, 
and its employees, including but not limited to the following 
considerations:
    (1) The proposed donation may be only in an amount that would not 
influence or appear to influence any pending Bureau decision or action 
involving the donor's interests;
    (2) There may be no actual or implied commitment to take an action 
favorable to the donor in exchange for the donation;
    (3) The donor may not obtain or appear to obtain special treatment 
dealing with the Bureau or Bureau-operated school.
    (e) The fundraising and donation must maintain public confidence in 
the Bureau and Bureau-operated school, its programs, and its personnel, 
including but not limited to the following considerations:
    (1) The fundraising and acceptance of the donation would not likely 
result in public controversy;
    (2) Any conditions on donations must be consistent with the Bureau 
and Bureau-operated school's policy, goals, and programs; and
    (3) The fundraising and donation may not involve any inappropriate 
goods or services.
    (f) Participation in fundraising is voluntary. No student, 
community member, or organization shall be forced, coerced or otherwise 
unduly pressured to participate in fundraising. No criticism nor any 
retaliatory action may be taken against, any student, community member, 
or organization for failure to participate or succeed in fundraising.


Sec.  48.206  What approvals are necessary to accept a donation under 
this subpart?

    Prior to accepting a donation valued at $5,000 or more under this 
subpart, the Director's designee must approve the acceptance and 
certify that it complies with this subpart, including the 
considerations of Sec.  48.205, Departmental policy, and any applicable 
statute or regulation.

[[Page 65008]]

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

    (a) The Director's designee must deposit all income from the 
fundraising into the into the designated Treasury account. Once the 
Bureau deposits the funds, the Bureau will work with the Bureau-
operated school to make the funds available.
    (b) The Bureau-operated school must first use the funds to pay 
documented costs of the fundraising activity and must use the remaining 
funds in accordance with paragraph (c) of this section.
    (c) Funds and in-kind donations solicited under this subpart may be 
used for the school purposes identified in the solicitation. If the 
solicitation did not identify the school purposes, the funds and in-
kind donations may be used for any school purposes defined in Sec.  
48.3.


Sec.  48.208  How must the Bureau-operated school report donations?

    Each Bureau-operated school that has received donations must submit 
an annual report to the Director containing the following information:
    (a) A list of donors, donation amounts, and estimated values of 
donated goods and services;
    (b) An accounting of all costs of fundraising activities;
    (c) Supporting documentation showing the donations were used for 
school purposes; and
    (d) A report of the results achieved by use of donations.

Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-21536 Filed 10-13-20; 8:45 am]
BILLING CODE 4337-15-P