Text: S.943 — 115th Congress (2017-2018)All Information (Except Text)

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Public Law No: 115-404 (12/31/2018)

 
[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.--

[[Page 132 STAT. 5353]]

                    ``(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

[[Page 132 STAT. 5354]]

(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:
---------------------------------------------------------------------------

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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