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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Johnson-O’Malley Sup3 plemental Indian Education Program Modernization Act’’. 

4 SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT 

5 UPDATE. 

6 The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) 

7 (commonly referred to as the Johnson-O’Malley Act) is 

8 amended by adding at the end the following: 

9 ‘‘SEC. 7. COMPUTATION OF STUDENT COUNT. 

10 ‘‘(a) DEFINITIONS.—For the purposes of this Act, 

11 the following definitions apply: 

12 ‘‘(1) CONTRACTING PARTY.—The term ‘con13 tracting party’ means an entity that has a contract 

14 through a program authorized under this Act. 

15 ‘‘(2) ELIGIBLE ENTITY.—The term ‘eligible en16 tity’ means an entity that is eligible to apply for a 

17 contract for a supplemental or operational support 

18 program under this Act, as outlined in section 1. 

19 ‘‘(3) EXISTING CONTRACTING PARTY.—The 

20 term ‘existing contracting party’ means a con21 tracting party that has a contract under this Act 

22 that is in effect on the date of enactment of the 

23 JOM Modernization Act. 

24 ‘‘(4) JOM MODERNIZATION ACT.—The term 

25 ‘JOM Modernization Act’ means the Johnson- 
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1 O’Malley Supplemental Indian Education Program 

2 Modernization Act. 

3 ‘‘(5) NEW CONTRACTING PARTY.—The term 

4 ‘new contracting party’ means an entity that enters 

5 into a contract under this Act after the date of en6 actment of the JOM Modernization Act. 

7 ‘‘(6) SECRETARY.—The term ‘Secretary’ means 

8 the Secretary of the Interior. 

9 ‘‘(b) DETERMINATION OF THE NUMBER OF ELIGI10 BLE INDIAN STUDENTS.— 

11 ‘‘(1) INITIAL DETERMINATIONS.— 

12 ‘‘(A) IN GENERAL.—The Secretary shall 

13 make an initial determination of the number of 

14 eligible Indian students served or potentially 

15 served by each eligible entity in accordance with 

16 subparagraph (B). 

17 ‘‘(B) PROCESS FOR MAKING THE INITIAL

18 DETERMINATION.— 

19 ‘‘(i) PRELIMINARY REPORT.—Not 

20 later than 180 days after the date of en21 actment of the JOM Modernization Act, 

22 the Secretary shall publish a preliminary 

23 report describing the number of eligible In24 dian students served or potentially served 

25 by each eligible entity, using the most ap-
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1 plicable and accurate data (as determined 

2 by the Secretary in consultation with eligi3 ble entities) from the fiscal year preceding 

4 the fiscal year for which the initial deter5 mination is to be made from— 

6 ‘‘(I) the Bureau of the Census; 

7 ‘‘(II) the National Center for 

8 Education Statistics; or 

9 ‘‘(III) the Office of Indian Edu10 cation of the Department of Edu11 cation. 

12 ‘‘(ii) DATA RECONCILIATION.—To im13 prove the accuracy of the preliminary re14 port described in clause (i) prior to pub15 lishing, the Secretary shall reconcile the 

16 data described in the preliminary report 

17 with— 

18 ‘‘(I) each existing contracting 

19 party’s data regarding the number of 

20 eligible Indian students served by the 

21 existing contracting party for the fis22 cal year preceding the fiscal year for 

23 which the initial determination is 

24 made; and 
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1 ‘‘(II) identifiable tribal enroll2 ment information. 

3 ‘‘(iii) COMMENT PERIOD.—After pub4 lishing the preliminary report under clause 

5 (i) in accordance with clause (ii), the Sec6 retary shall establish a 60-day comment 

7 period to gain feedback about the prelimi8 nary report from eligible entities, which the 

9 Secretary shall take into consideration in 

10 preparing the final report described in 

11 clause (iv). 

12 ‘‘(iv) FINAL REPORT.—Not later than 

13 120 days after concluding the consultation 

14 described in clause (iii), the Secretary shall 

15 publish a final report on the initial deter16 mination of the number of eligible Indian 

17 students served or potentially served by 

18 each eligible entity, including justification 

19 for not including any feedback gained dur20 ing such consultation, if applicable. 

21 ‘‘(2) SUBSEQUENT ACADEMIC YEARS.—For 

22 each academic year following the fiscal year for 

23 which an initial determination is made under para24 graph (1) to determine the number of eligible Indian 

25 students served or potentially served by a con-
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1 tracting party, the Secretary shall determine the 

2 number of eligible Indian students served by the 

3 contracting party based on the reported eligible In4 dian student count numbers identified through the 

5 reporting process described in subsection (c). 

6 ‘‘(c) CONTRACTING PARTY STUDENT COUNT RE7 PORTING COMPLIANCE.— 

8 ‘‘(1) IN GENERAL.—For each academic year 

9 following the fiscal year for which an initial deter10 mination is made under subsection (b) to determine 

11 the number of eligible Indian students served or po12 tentially served by a contracting party, the con13 tracting party shall submit to the Secretary a report 

14 describing the number of eligible Indian students 

15 who were served using amounts allocated to such 

16 party under this Act during the previous fiscal year. 

17 ‘‘(2) FAILURE TO COMPLY.—A contracting 

18 party that fails to submit a report under paragraph 

19 (1) shall receive no amounts under this Act for the 

20 fiscal year following the academic year for which the 

21 report should have been submitted. 

22 ‘‘(3) NOTICE.—The Secretary shall provide con23 tracting parties with timely information relating 

24 to— 
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1 ‘‘(A) initial and final reporting deadlines; 

2 and 

3 ‘‘(B) the consequences of failure to comply 

4 outlined in paragraph (2). 

5 ‘‘(4) TECHNICAL ASSISTANCE.—The Secretary, 

6 acting through the Director of the Bureau of Indian 

7 Education, shall provide technical assistance and 

8 training on compliance with the reporting require9 ments of this subsection to contracting parties. 

10 ‘‘(d) ANNUAL REPORT.— 

11 ‘‘(1) IN GENERAL.—The Secretary shall pre12 pare an annual report, including the most recent de13 termination of the number of eligible Indian stu14 dents served by each contracting party, rec15 ommendations on appropriate funding levels for the 

16 program based on such determination, and an as17 sessment of the contracts under this Act that the 

18 Secretary— 

19 ‘‘(A) may include in the budget request of 

20 the Department of the Interior for each fiscal 

21 year; and 

22 ‘‘(B) shall submit to— 

23 ‘‘(i) the Committee on Indian Affairs 

24 of the Senate; 
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1 ‘‘(ii) the Subcommittee on Interior, 

2 Environment, and Related Agencies of the 

3 Committee on Appropriations of the Sen4 ate; 

5 ‘‘(iii) the Committee on Education 

6 and the Workforce of the House of Rep7 resentatives; and 

8 ‘‘(iv) the Subcommittee on Interior, 

9 Environment, and Related Agencies of the 

10 Committee on Appropriations of the House 

11 of Representatives. 

12 ‘‘(2) MANNER OF PREPARATION.—The Sec13 retary shall prepare the report under paragraph (1) 

14 in a manner so as to prevent or minimize new ad15 ministrative burdens on contracting parties receiving 

16 funds under this Act. 

17 ‘‘(e) HOLD HARMLESS.— 

18 ‘‘(1) INITIAL HOLD HARMLESS.— 

19 ‘‘(A) IN GENERAL.—Except as provided 

20 under subparagraph (B) and subject to sub21 paragraphs (C) and (D), for a fiscal year, an 

22 existing contracting party shall not receive an 

23 amount under this Act that is less than the 

24 amount that such existing contracting party re25 ceived under this Act for the fiscal year pre-
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1 ceding the date of enactment of the JOM Mod2 ernization Act. 

3 ‘‘(B) EXCEPTIONS.— 

4 ‘‘(i) IN GENERAL.—An existing con5 tracting party shall receive an amount 

6 under this Act for a fiscal year that is less 

7 than the amount that the existing con8 tracting party received under this Act for 

9 the fiscal year preceding the date of enact10 ment of the JOM Modernization Act, if 1 

11 or more of the following conditions is met: 

12 ‘‘(I) FAILURE TO REPORT.—The 

13 existing contracting party failed to 

14 submit the report described in sub15 section (c) that was most recently due 

16 from the date of the determination. 

17 ‘‘(II) VIOLATIONS OF CONTRACT

18 OR LAW.—The Secretary has found 

19 that the existing contracting party has 

20 violated the terms of a contract en21 tered into under this Act or has other22 wise violated Federal law. 

23 ‘‘(III) STUDENT COUNT DE24 CREASE.—The number of eligible In25 dian students reported by such exist-
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1 ing contracting party under sub2 section (c) has decreased below the 

3 number of eligible Indian students 

4 served by the existing contracting 

5 party in the fiscal year preceding the 

6 date of enactment of the JOM Mod7 ernization Act. 

8 ‘‘(ii) AMOUNT OF FUNDING REDUC9 TION FOR EXISTING CONTRACTING PAR10 TIES REPORTING DECREASED STUDENT

11 COUNTS.—A reduction in an amount pur12 suant to clause (i)(III) shall not be done in 

13 such a manner that the existing con14 tracting party receives an amount of fund15 ing per eligible Indian student that is less 

16 than the amount of funding per eligible In17 dian student such party received for the 

18 fiscal year preceding the date of enactment 

19 of the JOM Modernization Act. 

20 ‘‘(C) RATABLE REDUCTIONS IN APPRO21 PRIATIONS.—If the funds available under this 

22 Act for a fiscal year are insufficient to pay the 

23 full amounts that all existing contracting par24 ties are eligible to receive under subparagraph 
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1 (A) for the fiscal year, the Secretary shall rat2 ably reduce those amounts for the fiscal year. 

3 ‘‘(D) SUNSET.—This paragraph shall cease 

4 to be effective 4 years after the date of enact5 ment of the JOM Modernization Act. 

6 ‘‘(2) MAXIMUM DECREASE AFTER 4 YEARS.— 

7 Beginning 4 years after the date of enactment of the 

8 JOM Modernization Act, no contracting party shall 

9 receive for a fiscal year more than a 10 percent de10 crease in funding per eligible Indian student from 

11 the previous fiscal year. 

12 ‘‘(f) FUNDING ALLOCATION AND REFORM.— 

13 ‘‘(1) FUNDING REFORM.—The Secretary may 

14 make recommendations for legislation to increase the 

15 amount of funds available per eligible Indian student 

16 through contracts under this Act to equal to or 

17 greater than the amount of funds that were available 

18 per eligible Indian student through contracts under 

19 this Act for fiscal year 1995, and attempt to identify 

20 additional sources of funding that do not reallocate 

21 existing funds otherwise utilized by Indian students 

22 served— 

23 ‘‘(A) by the Bureau of Indian Education; 

24 or 
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1 ‘‘(B) under title VI of the Elementary and 

2 Secondary Education Act of 1965 (20 U.S.C. 

3 7401 et seq.). 

4 ‘‘(2) INCREASES IN PROGRAM FUNDING.— 

5 ‘‘(A) IN GENERAL.—Subject to subsection 

6 (e) and subparagraph (B), for any fiscal year 

7 for which the amount appropriated to carry out 

8 this Act exceeds the amount appropriated to 

9 carry out this Act for the preceding fiscal year, 

10 the excess amounts shall— 

11 ‘‘(i) be allocated only to those con12 tracting parties that did not receive their 

13 full per student funding allocation for the 

14 previous fiscal year; and 

15 ‘‘(ii) be allocated first to new con16 tracting parties that did not receive their 

17 full per student funding allocation for the 

18 previous fiscal year. 

19 ‘‘(B) PARITY IN FUNDING.—Subparagraph 

20 (A) shall have no effect after the first fiscal 

21 year for which each contracting party receives 

22 their full per student funding allocation. 

23 ‘‘(g) INCREASED GEOGRAPHICAL AND TRIBAL PAR24 TICIPATION IN THE JOHNSON-O’MALLEY SUPPLE25 MENTARY EDUCATION PROGRAM.—To the maximum ex-
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1 tent practicable, the Secretary shall consult with Indian 

2 tribes and contact State educational agencies, local edu3 cational agencies, and Alaska Native organizations that 

4 have not previously entered into a contract under this 

5 Act— 

6 ‘‘(1) to determine the interest of the Indian 

7 tribes, State educational agencies, local educational 

8 agencies, and Alaska Native organizations, in enter9 ing into such contracts; and 

10 ‘‘(2) to share information relating to the proc11 ess for entering into a contract under this Act. 

12 ‘‘(h) RULEMAKING.— 

13 ‘‘(1) IN GENERAL.—Not later than one year 

14 after the date of enactment of the JOM Moderniza15 tion Act, the Secretary, acting through the Director 

16 of the Bureau of Indian Education, shall undertake 

17 and complete a rulemaking process, following the 

18 provisions of subchapter II of chapter 5 of title 5, 

19 United States Code, to— 

20 ‘‘(A) determine how the regulatory defini21 tion of ‘eligible Indian student’ may be revised 

22 to clarify eligibility requirements for contracting 

23 parties under this Act; 

24 ‘‘(B) determine, as necessary, how the 

25 funding formula described in section 273.31 of 
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1 title 25, Code of Federal Regulations (as in ef2 fect on the day before the date of enactment of 

3 the JOM Modernization Act) may be clarified 

4 and revised to ensure full participation of con5 tracting parties and provide clarity on the fund6 ing process under this Act; and 

7 ‘‘(C) otherwise reconcile and modernize the 

8 rules to comport with the activities of the con9 tracting parties under this Act as of the date of 

10 enactment of the JOM Modernization Act. 

11 ‘‘(2) REPORT.—Not later than 30 days after 

12 the date the rulemaking under paragraph (1) is 

13 complete, the Secretary shall submit a report to 

14 Congress describing the results of such rulemaking 

15 and necessary recommendations to ensure the full 

16 implementation of such rulemaking. 

17 ‘‘(i) STUDENT PRIVACY.—The Secretary shall ensure 

18 that data is collected and each report is prepared under 

19 this section in a manner that protects the rights of eligible 

20 Indian students in accordance with section 444 of the 

21 General Education Provisions Act (commonly referred to 

22 as the Family Educational Rights and Privacy Act of 

23 1974) (20 U.S.C. 1232g). 
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1 ‘‘(j) GAO REPORT.—Not later than 18 months after 

2 the final report described in subsection (b)(1)(B)(iv) is 

3 published, the Comptroller General shall— 

4 ‘‘(1) conduct a review of the implementation of 

5 this section during the preceding two-year period, in6 cluding any factors impacting— 

7 ‘‘(A) the accuracy of the determinations of 

8 the number of eligible Indian students under 

9 this section; 

10 ‘‘(B) the communication between the Bu11 reau of Indian Education and contracting par12 ties; and 

13 ‘‘(C) the efforts by the Bureau of Indian 

14 Education to ensure accurate and sufficient dis15 tribution of funding for Indian students; 

16 ‘‘(2) submit a report describing the results of 

17 the review under paragraph (1) to— 

18 ‘‘(A) the Committee on Indian Affairs of 

19 the Senate; 

20 ‘‘(B) the Subcommittee on Interior, Envi21 ronment, and Related Agencies of the Com22 mittee on Appropriations of the Senate; 

23 ‘‘(C) the Subcommittee on Indian, Insular 

24 and Alaska Native Affairs of the Committee on 
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1 Natural Resources of the House of Representa2 tives; and 

3 ‘‘(D) the Subcommittee on Interior, Envi4 ronment, and Related Agencies of the Com5 mittee on Appropriations of the House of Rep6 resentatives; and 

7 ‘‘(3) make such report publicly available. 

8 ‘‘(k) EFFECT.—Nothing in this section— 

9 ‘‘(1) creates a new program or duplicates pro10 gram activities under this Act; or 

11 ‘‘(2) replaces or diminishes the effect of regula12 tions to carry out this Act existing on the day before 

13 the date of enactment of the JOM Modernization 

14 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 

for other purposes. programs under the Johnson-O’Malley Act, and purposes of calculating formula allocations for an accurate comprehensive student count for the