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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Rules and Regulations
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consideration received, the manner in which the consideration is used, and any results achieved by such use.
The BIE published a proposed rule on October 14, 2020 85 FR 65000 and received four comments, which are discussed later in this preamble.
II. Summary of Rule This rule establishes a new Code of Federal Regulations CFR part to implement the leasing and fundraising authority that Congress granted to BIE
under Public Law 11274, as amended by Public Law 113235 and Public Law 114113. The leasing provisions of this rule apply only to the facilities and land of Bureau-operated schools. This rule does not apply to public schools, Public Law 100297 Tribally controlled grant schools, or Public Law 93638 contract schools. This rule implements statutory leasing authority specific to leasing of Bureau-operated school facilities and land and is 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. While the regulations at part 162 allow the granting of permits for use of Government land, the primary purpose of part 162 is to promote leasing of Indian land for housing, economic development, and other purposes. In contrast, the purpose of these new regulations at part 48 is to lease or rent Bureau-operated school facilities in exchange for consideration that will be used for school purposes. 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 rule apply only to employees of schools operated by the BIE. Subpart A of the rule sets forth the purpose, definitions, and other general provisions applicable to both leasing and fundraising.
Subpart B establishes the mechanisms and standards by which the Bureau may lease Bureau-operated school facilities and land to third parties. The statutory authority for the rules leasing sections provides that the BIE Director or the Directors designee is authorized to enter into agreements with public and private persons and entities that provide for such persons and entities to rent or lease the land or facilities of a Bureauoperated school in exchange for a consideration in the form of funds that
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benefits the school, as determined by the head of the school. Public Law 112
74, section 115a1. The rule allows only the BIE Director or his or her designee to enter into leases, and defines the Directors designee to be the Associate Deputy DirectorBureauOperated Schools or the Associate Deputy DirectorNavajo Schools.
While most lease negotiations will occur at the school level, having someone at the Associate Deputy Director level make the ultimate determination whether to enter into a lease provides an appropriate level of oversight. The rule is written to provide a basic framework for leasing of Bureau-operated school facilities without being overly prescriptive so that it can accommodate a wide range of leasing circumstances everything from leasing out a school gymnasium for a few hours to entering into a commercial lease of Bureauoperated school facility land to a billboard company. Accordingly, the rule sets forth the standards the BIE
Director or designee will use to determine whether to enter into a lease.
A primary standard for determining whether to enter into a lease is that the lease provides a net financial benefit to the school because the statutory authority for this regulation is centered on BIE receiving consideration in the form of funds that benefit the school.
The BIE Director or designee will also consider including lease terms to incorporate the standards listed in 48.104. 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.
In accordance with the limited authority provided by the statute, 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. The rule also broadly establishes how the Director or his or her designee will determine what amount is proper for lease consideration. While fair market value is a consideration, a formal appraisal may not be needed in all circumstances e.g., leasing out the school gym for a few hours so the rule does not require a formal appraisal. The rule also establishes the mechanics for lessees to pay consideration and describes how the Bureau will process the funds. The rule provides the same late payment fees as are provided in the part 162
provisions for leasing Indian land. For oversight purposes, the rule requires Bureau-operated school personnel to
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report annually on any active lease to the Director and others, and include an accounting of all expenditures and supporting documentation showing expenditures were made for school purposes.
Subpart C of the rule addresses fundraising activities by employees of Bureau-operated schools in their official capacity on behalf of those schools.
Nothing in this rule affects fundraising activities by students. The statutory authority for the rules fundraising sections allows BIE personnel to participate in a fundraising activity for the benefit of a Bureau-operated school in an official capacity as part of their official duties, and using the employees official title, position, and authority.
This subpart of the rule allows authorized personnel to spend a reasonable portion of his or her official duty time fundraising. BIE uses the phrase reasonable portion rather than specifying a number of hours or percentage of duty time to provide flexibility for different work schedules and fundraising activities while ensuring that school personnel are still fulfilling their work duties. The Director, Directors designee, or Head of School would determine what constitutes a reasonable portion when they review the proposed fundraising activity under 48.202 to certify that it complies with regulatory requirements.
In accordance with the statutes requirement for the regulations to establish standards to ensure ethical conduct, this subpart limits the types of fundraising an employee may conduct to ensure fundraising maintains the schools integrity, the Bureaus impartiality, and public confidence in the school. Certain approvals are required before personnel may accept a donation on behalf of a school as a mechanism for acceptance of the use of funds and a check to ensure standards are being upheld. In accordance with the statutes requirement that fundraising activity benefit a Bureauoperated school, each Bureau-operated school that receives donations is 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. Responses to Comments BIE received four written comment submissions on the proposed rule, some of which contained more than one comment. A summary of each of the issues raised in the comments and BIEs responses follow:

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