    [United States Statutes at Large, Volume 132, 115th Congress, 2nd Session]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    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. <>

    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

    [[Page 5350]]

    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

    [[Page 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 <> .--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

    [[Page 5352]]

    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 <> .--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 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. <> --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 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 <> .--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 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) <>  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) <>  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.