[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 943 Engrossed in Senate (ES)]

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115th CONGRESS
  2d Session
                                 S. 943

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

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. 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 served or potentially served by each eligible 
                entity in accordance with subparagraph (B).
                    ``(B) Process for making the initial 
                determination.--
                            ``(i) Preliminary report.--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 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.
            ``(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.--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; and
                    ``(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.
            ``(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 contracting party received 
                        under this Act for the fiscal year preceding 
                        the date of enactment of the JOM Modernization 
                        Act, if 1 or more of the following conditions 
                        is met:
                                    ``(I) Failure to report.--The 
                                existing contracting party failed to 
                                submit the 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.--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.--
                    ``(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.--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.--Not later than one 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.--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 (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) conduct a review of the implementation of this 
        section during the preceding two-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) 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.''.

            Passed the Senate March 22, 2018.

            Attest:

                                                             Secretary.
115th CONGRESS

  2d Session

                                 S. 943

_______________________________________________________________________

                                 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.