Education Contracts Under Johnson-O'Malley Act
| Published date | 27 June 2019 |
| Citation | 84 FR 30647 |
| Record Number | 2019-13632 |
| Section | Proposed rules |
| Court | Indian Affairs Bureau |
Federal Register, Volume 84 Issue 124 (Thursday, June 27, 2019)
[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
