```

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

<DOC>

                                                       Calendar No. 295
115th CONGRESS
  2d Session
                                 S. 943

                          [Report No. 115-201]

    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.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 26, 2017

Ms. Heitkamp (for herself, Mr. Lankford, and Mr. Daines) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

                            January 24, 2018

               Reported by Mr. Hoeven, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
    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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act''.</DELETED>

<DELETED>SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT 
              UPDATE.</DELETED>

<DELETED>    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:</DELETED>

<DELETED>``SEC. 7. COMPUTATION OF STUDENT COUNT.</DELETED>

<DELETED>    ``(a) Definitions.--For the purposes of this Act, the 
following definitions apply:</DELETED>
        <DELETED>    ``(1) Contracting party.--The term `contracting 
        party' means an entity that has a contract through a program 
        authorized under this Act.</DELETED>
        <DELETED>    ``(2) 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.</DELETED>
        <DELETED>    ``(3) JOM modernization act.--The term `JOM 
        Modernization Act' means the Johnson-O'Malley Supplemental 
        Indian Education Program Modernization Act.</DELETED>
        <DELETED>    ``(4) New applicant.--The term `new applicant' 
        means an entity that applies to participate in a contract under 
        this Act after the date of enactment of the JOM Modernization 
        Act but not later than 240 days after such date of 
        enactment.</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(6) Secretary.--The term `Secretary' means the 
        Secretary of the Interior.</DELETED>
<DELETED>    ``(b) In General.--Except as provided in subsection (f) 
and pursuant to subsection (g), the Secretary shall determine the 
amount that a contracting party receives under such contract for any 
fiscal year in accordance with--</DELETED>
        <DELETED>    ``(1) the distribution 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) and future iterations of the formula as 
        determined by the Bureau of Indian Education in consultation 
        with Indian tribes and contracting parties; and</DELETED>
        <DELETED>    ``(2) the number of eligible Indian students 
        served or potentially served by the contracting party, as 
        determined by the Secretary in accordance with subsection 
        (c).</DELETED>
<DELETED>    ``(c) Determination of the Number of Eligible Indian 
Students.--</DELETED>
        <DELETED>    ``(1) Initial determinations for existing 
        contracting parties.--</DELETED>
                <DELETED>    ``(A) In general.--The Secretary shall 
                make an initial determination of the number of eligible 
                Indian students served by each existing contracting 
                party in accordance with subparagraph (B).</DELETED>
                <DELETED>    ``(B) Process for making the initial 
                determination.--</DELETED>
                        <DELETED>    ``(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 
                        by each existing contracting party, using the 
                        most applicable and accurate data (as 
                        determined by the Secretary in consultation 
                        with existing contracting parties) from the 
                        fiscal year preceding the fiscal year for which 
                        the initial determination is to be made from--
                        </DELETED>
                                <DELETED>    ``(I) the Bureau of the 
                                Census;</DELETED>
                                <DELETED>    ``(II) the National Center 
                                for Education Statistics; or</DELETED>
                                <DELETED>    ``(III) the Office of 
                                Indian Education of the Department of 
                                Education.</DELETED>
                        <DELETED>    ``(ii) Data evaluation.--
                        </DELETED>
                                <DELETED>    ``(I) In general.--After 
                                publishing the preliminary report under 
                                clause (i), the Secretary shall 
                                evaluate the accuracy of the findings 
                                contained in such report.</DELETED>
                                <DELETED>    ``(II) Consultation.--To 
                                inform the evaluation described in 
                                subclause (I), the Secretary shall 
                                establish a 60-day comment period to 
                                gain feedback about the preliminary 
                                report from existing contracting 
                                parties.</DELETED>
                                <DELETED>    ``(III) Data 
                                reconciliation.--To evaluate the 
                                accuracy of the preliminary report and 
                                through the consultation process 
                                required under subclause (II), the 
                                Secretary shall reconcile the data 
                                described in the preliminary report 
                                with--</DELETED>
                                        <DELETED>    ``(aa) the 
                                        existing contracting party's 
                                        data regarding the number of 
                                        eligible Indian students served 
                                        by that existing contracting 
                                        party for the fiscal year 
                                        preceding the fiscal year for 
                                        which the initial determination 
                                        is made; and</DELETED>
                                        <DELETED>    ``(bb) 
                                        identifiable tribal enrollment 
                                        information.</DELETED>
                        <DELETED>    ``(iii) Final report.--Not later 
                        than 120 days after concluding the consultation 
                        described in clause (ii)(II), the Secretary 
                        shall publish a final report on the initial 
                        determination of the number of eligible Indian 
                        students served by each existing contracting 
                        party.</DELETED>
                <DELETED>    ``(C) Technical assistance.--The 
                Secretary, acting through the Director of the Bureau of 
                Indian Education, shall provide existing contracting 
                parties with technical assistance relating to the 
                receipt and provision of information on the number of 
                eligible Indian students served by the existing 
                contracting party.</DELETED>
        <DELETED>    ``(2) Initial determinations for new applicants.--
        </DELETED>
                <DELETED>    ``(A) In general.--For the purposes of 
                making an initial determination of the number of 
                potentially eligible Indian students to be served by 
                each new applicant, the Secretary shall publish a 
                report in accordance with subparagraph (B).</DELETED>
                <DELETED>    ``(B) Process for making the initial 
                determination.--To determine the number of potentially 
                eligible Indian students to be served by new 
                applicants, the Secretary shall--</DELETED>
                        <DELETED>    ``(i) include in the report the 
                        respective total eligible Indian student counts 
                        for each new applicant, as reported by the 
                        applicant during the application process, and 
                        other pertinent information, as determined by 
                        the Secretary; and</DELETED>
                        <DELETED>    ``(ii) publish the report 
                        described in clause (i) on the same date the 
                        final report described in paragraph (1)(B)(iii) 
                        is published.</DELETED>
        <DELETED>    ``(3) Subsequent academic years.--For each 
        academic year following the fiscal year for which an initial 
        determination is made under paragraphs (1) and (2), 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 (d).</DELETED>
<DELETED>    ``(d) Contracting Party Student Count Reporting 
Compliance.--</DELETED>
        <DELETED>    ``(1) In general.--For each academic year 
        following the fiscal year for which an initial determination is 
        made under subsection (c), each 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.</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(3) Notice.--The Secretary shall provide 
        contracting parties with timely information relating to--
        </DELETED>
                <DELETED>    ``(A) initial and final reporting 
                deadlines; and</DELETED>
                <DELETED>    ``(B) the consequences of failure to 
                comply outlined in paragraph (2).</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(e) Annual Report.--</DELETED>
        <DELETED>    ``(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, and an assessment of the contracts under this Act that 
        the Secretary--</DELETED>
                <DELETED>    ``(A) may include in the budget request of 
                the Department of the Interior for each fiscal year; 
                and</DELETED>
                <DELETED>    ``(B) shall submit to--</DELETED>
                        <DELETED>    ``(i) the Committee on Indian 
                        Affairs of the Senate;</DELETED>
                        <DELETED>    ``(ii) the Subcommittee on 
                        Interior, Environment, and Related Agencies of 
                        the Committee on Appropriations of the 
                        Senate;</DELETED>
                        <DELETED>    ``(iii) the Committee on Natural 
                        Resources of the House of Representatives; 
                        and</DELETED>
                        <DELETED>    ``(iv) the Subcommittee on 
                        Interior, Environment, and Related Agencies of 
                        the Committee on Appropriations of the House of 
                        Representatives.</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(f) Hold Harmless.--</DELETED>
        <DELETED>    ``(1) In general.--Except as provided under 
        paragraph (2) and subject to paragraph (3), 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.</DELETED>
        <DELETED>    ``(2) Exceptions.--</DELETED>
                <DELETED>    ``(A) 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 one or more of the following 
                conditions is met:</DELETED>
                        <DELETED>    ``(i) Failure to report.--The 
                        existing contracting party failed to submit the 
                        report described in subsection (d) that was 
                        most recently due from the date of the 
                        determination.</DELETED>
                        <DELETED>    ``(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.</DELETED>
                        <DELETED>    ``(iii) Student count decrease.--
                        The number of eligible Indian students reported 
                        by such existing contracting party under 
                        subsection (d) has decreased below the number 
                        of eligible Indian students identified in the 
                        initial determination with respect to the 
                        existing contracting party under subsection 
                        (c)(1).</DELETED>
                <DELETED>    ``(B) Amount of funding reduction for 
                existing contracting parties reporting decreased 
                student counts.--A reduction in an amount pursuant to 
                subparagraph (A)(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.</DELETED>
        <DELETED>    ``(3) Sunset.--This subsection shall cease to be 
        effective at the beginning of the fiscal year after the first 
        fiscal year for which new contracting parties receive an amount 
        of funding per eligible Indian student that is equal to or 
        greater than the amount of funding per eligible Indian student 
        received by existing contracting parties for the fiscal year 
        preceding the date of enactment of the JOM Modernization 
        Act.</DELETED>
<DELETED>    ``(g) Funding Allocation and Reform.--</DELETED>
        <DELETED>    ``(1) Present day per student funding 
        allocation.--Not later than 60 days after an initial 
        determination is made under subsection (c), the Secretary shall 
        establish, in consultation with contracting parties, a present 
        day per student funding allocation that shall serve as a 
        funding baseline under this Act.</DELETED>
        <DELETED>    ``(2) 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--</DELETED>
                <DELETED>    ``(A) by the Bureau of Indian Education; 
                or</DELETED>
                <DELETED>    ``(B) under title VI of the Elementary and 
                Secondary Education Act of 1965 (20 U.S.C. 7401 et 
                seq.).</DELETED>
        <DELETED>    ``(3) Increases in program funding.--</DELETED>
                <DELETED>    ``(A) In general.--Subject to subsection 
                (f) and subparagraphs (B) and (C), 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--</DELETED>
                        <DELETED>    ``(i) be allocated only to those 
                        contracting parties that have not received 
                        their full per student funding allocation as 
                        determined pursuant to paragraph (1); 
                        and</DELETED>
                        <DELETED>    ``(ii) be allocated first to new 
                        contracting parties that have not received 
                        their full per student funding allocation as 
                        determined pursuant to paragraph (1).</DELETED>
                <DELETED>    ``(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 as determined pursuant to 
                paragraph (1).</DELETED>
                <DELETED>    ``(C) Future allocations.--Allocations of 
                appropriations for fiscal years after the first fiscal 
                year for which each contracting party receives their 
                full per student funding allocation as determined 
                pursuant to paragraph (1) shall be made at the 
                discretion of the Secretary, in consultation with 
                Indian tribes and contracting parties.</DELETED>
<DELETED>    ``(h) 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 and local educational agencies that 
have not previously entered into a contract under this Act--</DELETED>
        <DELETED>    ``(1) to determine the interest of the Indian 
        tribes and State educational agencies and local educational 
        agencies in entering into such contracts; and</DELETED>
        <DELETED>    ``(2) to share information relating to the process 
        for entering into a contract under this Act.</DELETED>
<DELETED>    ``(i) Rulemaking.--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--
</DELETED>
        <DELETED>    ``(1) determine how the regulatory definition of 
        `eligible Indian student' may be revised to clarify eligibility 
        requirements for contracting parties under this Act;</DELETED>
        <DELETED>    ``(2) 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</DELETED>
        <DELETED>    ``(3) 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.</DELETED>
<DELETED>    ``(j) 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).</DELETED>
<DELETED>    ``(k) GAO Report.--Not later than 2 years after the date 
of enactment of the JOM Modernization Act, the Comptroller General 
shall--</DELETED>
        <DELETED>    ``(1) conduct a review of the implementation of 
        this section during the preceding two-year period, including 
        any factors impacting--</DELETED>
                <DELETED>    ``(A) the accuracy of the determinations 
                of the number of eligible Indian students under this 
                section;</DELETED>
                <DELETED>    ``(B) the communication between the Bureau 
                of Indian Education and contracting parties; 
                and</DELETED>
                <DELETED>    ``(C) the efforts by the Bureau of Indian 
                Education to ensure accurate and sufficient 
                distribution of funding for Indian students;</DELETED>
        <DELETED>    ``(2) submit a report describing the results of 
        the review under paragraph (1) to--</DELETED>
                <DELETED>    ``(A) the Committee on Indian Affairs of 
                the Senate;</DELETED>
                <DELETED>    ``(B) the Subcommittee on Interior, 
                Environment, and Related Agencies of the Committee on 
                Appropriations of the Senate;</DELETED>
                <DELETED>    ``(C) the Subcommittee on Indian, Insular 
                and Alaska Native Affairs of the Committee on Natural 
                Resources of the House of Representatives; 
                and</DELETED>
                <DELETED>    ``(D) the Subcommittee on Interior, 
                Environment, and Related Agencies of the Committee on 
                Appropriations of the House of Representatives; 
                and</DELETED>
        <DELETED>    ``(3) make such report publicly 
        available.</DELETED>
<DELETED>    ``(l) Effect.--Nothing in this section--</DELETED>
        <DELETED>    ``(1) creates a new program or duplicates program 
        activities under this Act; or</DELETED>
        <DELETED>    ``(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.''.</DELETED>

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) Present day per student funding allocation.--Not 
        later than 60 days after an initial determination is made under 
        subsection (b), the Secretary shall propose, in consultation 
        with Indian tribes and contracting parties, a present day per 
        student funding allocation that shall serve as a funding 
        baseline under this Act.
            ``(2) 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.).
            ``(3) 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 and local educational agencies that 
have not previously entered into a contract under this Act--
            ``(1) to determine the interest of the Indian tribes and 
        State educational agencies and local educational agencies 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.''.
                                                       Calendar No. 295

115th CONGRESS

  2d Session

                                 S. 943

                          [Report No. 115-201]

_______________________________________________________________________

                                 A BILL

    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.

_______________________________________________________________________

                            January 24, 2018

                       Reported with an amendment
```