[115th Congress Public Law 404]
[From the U.S. Government Publishing Office]
[[Page 132 STAT. 5349]]
Public Law 115-404
115th Congress
An Act
To direct the Secretary of the Interior to conduct an accurate
comprehensive student count for the purposes of calculating formula
allocations for programs under the Johnson-O'Malley Act, and for other
purposes. <<NOTE: Dec. 31, 2018 - [S. 943]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Johnson-O'Malley
Supplemental Indian Education Program Modernization Act. 25 USC 5301
note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Johnson-O'Malley Supplemental Indian
Education Program Modernization Act''.
SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UPDATE.
The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) (commonly
referred to as the Johnson-O'Malley Act) is amended by adding at the end
the following:
``SEC. 7. <<NOTE: 25 USC 5348.>> COMPUTATION OF STUDENT COUNT.
``(a) Definitions.--For the purposes of this Act, the following
definitions apply:
``(1) Contracting party.--The term `contracting party' means
an entity that has a contract through a program authorized under
this Act.
``(2) Eligible entity.--The term `eligible entity' means an
entity that is eligible to apply for a contract for a
supplemental or operational support program under this Act, as
outlined in section 1.
``(3) Existing contracting party.--The term `existing
contracting party' means a contracting party that has a contract
under this Act that is in effect on the date of enactment of the
JOM Modernization Act.
``(4) JOM modernization act.--The term `JOM Modernization
Act' means the Johnson-O'Malley Supplemental Indian Education
Program Modernization Act.
``(5) New contracting party.--The term `new contracting
party' means an entity that enters into a contract under this
Act after the date of enactment of the JOM Modernization Act.
``(6) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``(b) Determination of the Number of Eligible Indian Students.--
``(1) Initial determinations.--
``(A) In general.--The Secretary shall make an
initial determination of the number of eligible Indian
students
[[Page 132 STAT. 5350]]
served or potentially served by each eligible entity in
accordance with subparagraph (B).
``(B) Process for making the initial
determination.--
``(i) Preliminary
report <<NOTE: Publication. Consultation.>> .--Not
later than 180 days after the date of enactment of
the JOM Modernization Act, the Secretary shall
publish a preliminary report describing the number
of eligible Indian students served or potentially
served by each eligible entity, using the most
applicable and accurate data (as determined by the
Secretary in consultation with eligible entities)
from the fiscal year preceding the fiscal year for
which the initial determination is to be made
from--
``(I) the Bureau of the Census;
``(II) the National Center for
Education Statistics; or
``(III) the Office of Indian
Education of the Department of
Education.
``(ii) Data reconciliation.--To improve the
accuracy of the preliminary report described in
clause (i) prior to publishing, the Secretary
shall reconcile the data described in the
preliminary report with--
``(I) each existing contracting
party's data regarding the number of
eligible Indian students served by the
existing contracting party for the
fiscal year preceding the fiscal year
for which the initial determination is
made; and
``(II) identifiable tribal
enrollment information.
``(iii) Comment period.--After publishing the
preliminary report under clause (i) in accordance
with clause (ii), the Secretary shall establish a
60-day comment period to gain feedback about the
preliminary report from eligible entities, which
the Secretary shall take into consideration in
preparing the final report described in clause
(iv).
``(iv) Final report.--Not later than 120 days
after concluding the consultation described in
clause (iii), the Secretary shall publish a final
report on the initial determination of the number
of eligible Indian students served or potentially
served by each eligible entity, including
justification for not including any feedback
gained during such consultation, if applicable.
``(2) Subsequent academic years.--For each academic year
following the fiscal year for which an initial determination is
made under paragraph (1) to determine the number of eligible
Indian students served or potentially served by a contracting
party, the Secretary shall determine the number of eligible
Indian students served by the contracting party based on the
reported eligible Indian student count numbers identified
through the reporting process described in subsection (c).
``(c) Contracting Party Student Count Reporting Compliance.--
``(1) In general.--For each academic year following the
fiscal year for which an initial determination is made under
subsection (b) to determine the number of eligible Indian
students served or potentially served by a contracting party,
the
[[Page 132 STAT. 5351]]
contracting party shall submit to the Secretary a report
describing the number of eligible Indian students who were
served using amounts allocated to such party under this Act
during the previous fiscal year. The report shall also include
an accounting of the amounts and purposes for which the contract
funds were expended.
``(2) Failure to comply.--A contracting party that fails to
submit a report under paragraph (1) shall receive no amounts
under this Act for the fiscal year following the academic year
for which the report should have been submitted.
``(3) Notice.--The Secretary shall provide contracting
parties with timely information relating to--
``(A) initial and final reporting deadlines; and
``(B) the consequences of failure to comply outlined
in paragraph (2).
``(4) Technical assistance.--The Secretary, acting through
the Director of the Bureau of Indian Education, shall provide
technical assistance and training on compliance with the
reporting requirements of this subsection to contracting
parties.
``(d) Annual Report.--
``(1) In general <<NOTE: Recommenda-
tions. Assessment.>> .--The Secretary shall prepare an annual
report, including the most recent determination of the number of
eligible Indian students served by each contracting party,
recommendations on appropriate funding levels for the program
based on such determination, and an assessment of the contracts
under this Act that the Secretary--
``(A) may include in the budget request of the
Department of the Interior for each fiscal year;
``(B) shall submit to--
``(i) the Committee on Indian Affairs of the
Senate;
``(ii) the Subcommittee on Interior,
Environment, and Related Agencies of the Committee
on Appropriations of the Senate;
``(iii) the Committee on Education and the
Workforce of the House of Representatives; and
``(iv) the Subcommittee on Interior,
Environment, and Related Agencies of the Committee
on Appropriations of the House of Representatives;
and
``(C) shall make publicly available.
``(2) Manner of preparation.--The Secretary shall prepare
the report under paragraph (1) in a manner so as to prevent or
minimize new administrative burdens on contracting parties
receiving funds under this Act.
``(e) Hold Harmless.--
``(1) Initial hold harmless.--
``(A) In general.--Except as provided under
subparagraph (B) and subject to subparagraphs (C) and
(D), for a fiscal year, an existing contracting party
shall not receive an amount under this Act that is less
than the amount that such existing contracting party
received under this Act for the fiscal year preceding
the date of enactment of the JOM Modernization Act.
``(B) Exceptions.--
``(i) In general.--An existing contracting
party shall receive an amount under this Act for a
fiscal year that is less than the amount that the
existing
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contracting party received under this Act for the
fiscal year preceding the date of enactment of the
JOM Modernization Act, if one or more of the
following conditions is met:
``(I) Failure to report.--The
existing contracting party failed to
submit a complete report described in
subsection (c) that was most recently
due from the date of the determination.
``(II) Violations of contract or
law.--The Secretary has found that the
existing contracting party has violated
the terms of a contract entered into
under this Act or has otherwise violated
Federal law.
``(III) Student count decrease.--The
number of eligible Indian students
reported by such existing contracting
party under subsection (c) has decreased
below the number of eligible Indian
students served by the existing
contracting party in the fiscal year
preceding the date of enactment of the
JOM Modernization Act.
``(ii) Amount of funding reduction for
existing contracting parties reporting decreased
student counts.--A reduction in an amount pursuant
to clause (i)(III) shall not be done in such a
manner that the existing contracting party
receives an amount of funding per eligible Indian
student that is less than the amount of funding
per eligible Indian student such party received
for the fiscal year preceding the date of
enactment of the JOM Modernization Act.
``(C) Ratable reductions in appropriations.--If the
funds available under this Act for a fiscal year are
insufficient to pay the full amounts that all existing
contracting parties are eligible to receive under
subparagraph (A) for the fiscal year, the Secretary
shall ratably reduce those amounts for the fiscal year.
``(D) Sunset.--This paragraph shall cease to be
effective 4 years after the date of enactment of the JOM
Modernization Act.
``(2) Maximum decrease after 4 years.--Beginning 4 years
after the date of enactment of the JOM Modernization Act, no
contracting party shall receive for a fiscal year more than a 10
percent decrease in funding per eligible Indian student from the
previous fiscal year.
``(f) Funding Allocation and Reform.--
``(1) Funding reform <<NOTE: Recommenda- tions.>> .--The
Secretary may make recommendations for legislation to increase
the amount of funds available per eligible Indian student
through contracts under this Act to equal to or greater than the
amount of funds that were available per eligible Indian student
through contracts under this Act for fiscal year 1995, and
attempt to identify additional sources of funding that do not
reallocate existing funds otherwise utilized by Indian students
served--
``(A) by the Bureau of Indian Education; or
``(B) under title VI of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7401 et seq.).
``(2) Increases in program funding.--
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``(A) In general.--Subject to subsection (e) and
subparagraph (B), for any fiscal year for which the
amount appropriated to carry out this Act exceeds the
amount appropriated to carry out this Act for the
preceding fiscal year, the excess amounts shall--
``(i) be allocated only to those contracting
parties that did not receive their full per
student funding allocation for the previous fiscal
year; and
``(ii) be allocated first to new contracting
parties that did not receive their full per
student funding allocation for the previous fiscal
year.
``(B) Parity in funding.--Subparagraph (A) shall
have no effect after the first fiscal year for which
each contracting party receives their full per student
funding allocation.
``(g) Increased Geographical and Tribal Participation in the
Johnson-O'Malley Supplementary Education
Program. <<NOTE: Consultation.>> --To the maximum extent practicable,
the Secretary shall consult with Indian tribes and contact State
educational agencies, local educational agencies, and Alaska Native
organizations that have not previously entered into a contract under
this Act--
``(1) to determine the interest of the Indian tribes, State
educational agencies, local educational agencies, and Alaska
Native organizations, in entering into such contracts; and
``(2) to share information relating to the process for
entering into a contract under this Act.
``(h) Rulemaking.--
``(1) In general. <<NOTE: Deadline. Determinations.>> --Not
later than 1 year after the date of enactment of the JOM
Modernization Act, the Secretary, acting through the Director of
the Bureau of Indian Education, shall undertake and complete a
rulemaking process, following the provisions of subchapter II of
chapter 5 of title 5, United States Code, to--
``(A) determine how the regulatory definition of
`eligible Indian student' may be revised to clarify
eligibility requirements for contracting parties under
this Act;
``(B) determine, as necessary, how the funding
formula described in section 273.31 of title 25, Code of
Federal Regulations (as in effect on the day before the
date of enactment of the JOM Modernization Act) may be
clarified and revised to ensure full participation of
contracting parties and provide clarity on the funding
process under this Act; and
``(C) otherwise reconcile and modernize the rules to
comport with the activities of the contracting parties
under this Act as of the date of enactment of the JOM
Modernization Act.
``(2) Report <<NOTE: Recommenda- tions.>> .--Not later than
30 days after the date the rulemaking under paragraph (1) is
complete, the Secretary shall submit a report to Congress
describing the results of such rulemaking and necessary
recommendations to ensure the full implementation of such
rulemaking.
``(i) Student Privacy.--The Secretary shall ensure that data is
collected and each report is prepared under this section in a manner
that protects the rights of eligible Indian students in accordance with
section 444 of the General Education Provisions Act
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(commonly referred to as the Family Educational Rights and Privacy Act
of 1974) (20 U.S.C. 1232g).
``(j) GAO Report.--Not later than 18 months after the final report
described in subsection (b)(1)(B)(iv) is published, the Comptroller
General shall--
``(1) <<NOTE: Review. Time period.>> conduct a review of
the implementation of this section during the preceding 2-year
period, including any factors impacting--
``(A) the accuracy of the determinations of the
number of eligible Indian students under this section;
``(B) the communication between the Bureau of Indian
Education and contracting parties; and
``(C) the efforts by the Bureau of Indian Education
to ensure accurate and sufficient distribution of
funding for Indian students;
``(2) submit a report describing the results of the review
under paragraph (1) to--
``(A) the Committee on Indian Affairs of the Senate;
``(B) the Subcommittee on Interior, Environment, and
Related Agencies of the Committee on Appropriations of
the Senate;
``(C) the Subcommittee on Indian, Insular and Alaska
Native Affairs of the Committee on Natural Resources of
the House of Representatives; and
``(D) the Subcommittee on Interior, Environment, and
Related Agencies of the Committee on Appropriations of
the House of Representatives; and
``(3) <<NOTE: Public information.>> make such report
publicly available.
``(k) Effect.--Nothing in this section--
``(1) creates a new program or duplicates program activities
under this Act; or
``(2) replaces or diminishes the effect of regulations to
carry out this Act existing on the day before the date of
enactment of the JOM Modernization Act, unless expressly
provided in this section.''.
Approved December 31, 2018.
LEGISLATIVE HISTORY--S. 943:
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SENATE REPORTS: No. 115-201 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 164 (2018):
Mar. 22, considered and passed Senate.
Dec. 11, considered and passed House, amended.
Dec. 19, Senate concurred in House amendment.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2018):
Dec. 31, Presidential statement.
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