II 

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. 

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) EXISTING CONTRACTING PARTY.—The 

16 term ‘existing contracting party’ means a con17 tracting party that has a contract under this Act 

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

19 JOM Modernization Act. 

20 ‘‘(3) JOM MODERNIZATION ACT.—The term 

21 ‘JOM Modernization Act’ means the Johnson22 O’Malley Supplemental Indian Education Program 

23 Modernization Act. 

24 ‘‘(4) NEW APPLICANT.—The term ‘new appli25 cant’ means an entity that applies to participate in 

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1 ment of the JOM Modernization Act but not later 

2 than 240 days after such date of enactment. 

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) IN GENERAL.—Except as provided in subsection 

10 (f) and pursuant to subsection (g), the Secretary shall de11 termine the amount that a contracting party receives 

12 under such contract for any fiscal year in accordance 

13 with— 

14 ‘‘(1) the distribution formula described in sec15 tion 273.31 of title 25, Code of Federal Regulations 

16 (as in effect on the day before the date of enactment 

17 of the JOM Modernization Act) and future itera18 tions of the formula as determined by the Bureau of 

19 Indian Education in consultation with Indian tribes 

20 and contracting parties; and 

21 ‘‘(2) the number of eligible Indian students 

22 served or potentially served by the contracting party, 

23 as determined by the Secretary in accordance with 

24 subsection (c). 


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1 ‘‘(c) DETERMINATION OF THE NUMBER OF ELIGIBLE

2 INDIAN STUDENTS.— 

3 ‘‘(1) INITIAL DETERMINATIONS FOR EXISTING

4 CONTRACTING PARTIES.— 

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

6 make an initial determination of the number of 

7 eligible Indian students served by each existing 

8 contracting party in accordance with subpara9 graph (B). 

10 ‘‘(B) PROCESS FOR MAKING THE INITIAL

11 DETERMINATION.— 

12 ‘‘(i) PRELIMINARY REPORT.—Not 

13 later than 180 days after the date of en14 actment of the JOM Modernization Act, 

15 the Secretary shall publish a preliminary 

16 report describing the number of eligible In17 dian students served by each existing con18 tracting party, using the most applicable 

19 and accurate data (as determined by the 

20 Secretary in consultation with existing con21 tracting parties) from the fiscal year pre22 ceding the fiscal year for which the initial 

23 determination is to be made from— 

24 ‘‘(I) the Bureau of the Census; 


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1 ‘‘(II) the National Center for 

2 Education Statistics; or 

3 ‘‘(III) the Office of Indian Edu4 cation of the Department of Edu5 cation. 

6 ‘‘(ii) DATA EVALUATION.— 

7 ‘‘(I) IN GENERAL.—After pub8 lishing the preliminary report under 

9 clause (i), the Secretary shall evaluate 

10 the accuracy of the findings contained 

11 in such report. 

12 ‘‘(II) CONSULTATION.—To in13 form the evaluation described in sub14 clause (I), the Secretary shall estab15 lish a 60-day comment period to gain 

16 feedback about the preliminary report 

17 from existing contracting parties. 

18 ‘‘(III) DATA RECONCILIATION.— 

19 To evaluate the accuracy of the pre20 liminary report and through the con21 sultation process required under sub22 clause (II), the Secretary shall rec23 oncile the data described in the pre24 liminary report with— 


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1 ‘‘(aa) the existing con2 tracting party’s data regarding 

3 the number of eligible Indian stu4 dents served by that existing con5 tracting party for the fiscal year 

6 preceding the fiscal year for 

7 which the initial determination is 

8 made; and 

9 ‘‘(bb) identifiable tribal en10 rollment information. 

11 ‘‘(iii) FINAL REPORT.—Not later than 

12 120 days after concluding the consultation 

13 described in clause (ii)(II), the Secretary 

14 shall publish a final report on the initial 

15 determination of the number of eligible In16 dian students served by each existing con17 tracting party. 

18 ‘‘(C) TECHNICAL ASSISTANCE.—The Sec19 retary, acting through the Director of the Bu20 reau of Indian Education, shall provide existing 

21 contracting parties with technical assistance re22 lating to the receipt and provision of informa23 tion on the number of eligible Indian students 

24 served by the existing contracting party. 


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1 ‘‘(2) INITIAL DETERMINATIONS FOR NEW AP2 PLICANTS.— 

3 ‘‘(A) IN GENERAL.—For the purposes of 

4 making an initial determination of the number 

5 of potentially eligible Indian students to be 

6 served by each new applicant, the Secretary 

7 shall publish a report in accordance with sub8 paragraph (B). 

9 ‘‘(B) PROCESS FOR MAKING THE INITIAL

10 DETERMINATION.—To determine the number of 

11 potentially eligible Indian students to be served 

12 by new applicants, the Secretary shall— 

13 ‘‘(i) include in the report the respec14 tive total eligible Indian student counts for 

15 each new applicant, as reported by the ap16 plicant during the application process, and 

17 other pertinent information, as determined 

18 by the Secretary; and 

19 ‘‘(ii) publish the report described in 

20 clause (i) on the same date the final report 

21 described in paragraph (1)(B)(iii) is pub22 lished. 

23 ‘‘(3) SUBSEQUENT ACADEMIC YEARS.—For 

24 each academic year following the fiscal year for 

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1 graphs (1) and (2), the Secretary shall determine 

2 the 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 (d). 

6 ‘‘(d) 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 (c), each con11 tracting party shall submit to the Secretary a report 

12 describing the number of eligible Indian students 

13 who were served using amounts allocated to such 

14 party under this Act during the previous fiscal year. 

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

16 party that fails to submit a report under paragraph 

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

18 fiscal year following the academic year for which the 

19 report should have been submitted. 

20 ‘‘(3) NOTICE.—The Secretary shall provide con21 tracting parties with timely information relating 

22 to— 

23 ‘‘(A) initial and final reporting deadlines; 

24 and 


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

2 outlined in paragraph (2). 

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

4 acting through the Director of the Bureau of Indian 

5 Education, shall provide technical assistance and 

6 training on compliance with the reporting require7 ments of this subsection to contracting parties. 

8 ‘‘(e) ANNUAL REPORT.— 

9 ‘‘(1) IN GENERAL.—The Secretary shall pre10 pare an annual report, including the most recent de11 termination of the number of eligible Indian stu12 dents served by each contracting party, and an as13 sessment of the contracts under this Act that the 

14 Secretary— 

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

16 the Department of the Interior for each fiscal 

17 year; and 

18 ‘‘(B) shall submit to— 

19 ‘‘(i) the Committee on Indian Affairs 

20 of the Senate; 

21 ‘‘(ii) the Subcommittee on Interior, 

22 Environment, and Related Agencies of the 

23 Committee on Appropriations of the Sen24 ate; 


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1 ‘‘(iii) the Committee on Natural Re2 sources of the House of Representatives; 

3 and 

4 ‘‘(iv) the Subcommittee on Interior, 

5 Environment, and Related Agencies of the 

6 Committee on Appropriations of the House 

7 of Representatives. 

8 ‘‘(2) MANNER OF PREPARATION.—The Sec9 retary shall prepare the report under paragraph (1) 

10 in a manner so as to prevent or minimize new ad11 ministrative burdens on contracting parties receiving 

12 funds under this Act. 

13 ‘‘(f) HOLD HARMLESS.— 

14 ‘‘(1) IN GENERAL.—Except as provided under 

15 paragraph (2) and subject to paragraph (3), for a 

16 fiscal year, an existing contracting party shall not 

17 receive an amount under this Act that is less than 

18 the amount that such existing contracting party re19 ceived under this Act for the fiscal year preceding 

20 the date of enactment of the JOM Modernization 

21 Act. 

22 ‘‘(2) EXCEPTIONS.— 

23 ‘‘(A) IN GENERAL.—An existing con24 tracting party shall receive an amount under 

25 this Act for a fiscal year that is less than the 


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1 amount that the existing contracting party re2 ceived under this Act for the fiscal year pre3 ceding the date of enactment of the JOM Mod4 ernization Act, if one or more of the following 

5 conditions is met: 

6 ‘‘(i) FAILURE TO REPORT.—The exist7 ing contracting party failed to submit the 

8 report described in subsection (d) that was 

9 most recently due from the date of the de10 termination. 

11 ‘‘(ii) VIOLATIONS OF CONTRACT OR

12 LAW.—The Secretary has found that the 

13 existing contracting party has violated the 

14 terms of a contract entered into under this 

15 Act or has otherwise violated Federal law. 

16 ‘‘(iii) STUDENT COUNT DECREASE.— 

17 The number of eligible Indian students re18 ported by such existing contracting party 

19 under subsection (d) has decreased below 

20 the number of eligible Indian students 

21 identified in the initial determination with 

22 respect to the existing contracting party 

23 under subsection (c)(1). 

24 ‘‘(B) AMOUNT OF FUNDING REDUCTION

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1 ING DECREASED STUDENT COUNTS.—A reduc2 tion in an amount pursuant to subparagraph 

3 (A)(iii) shall not be done in such a manner that 

4 the existing contracting party receives an 

5 amount of funding per eligible Indian student 

6 that is less than the amount of funding per eli7 gible Indian student such party received for the 

8 fiscal year preceding the date of enactment of 

9 the JOM Modernization Act. 

10 ‘‘(3) SUNSET.—This subsection shall cease to 

11 be effective at the beginning of the fiscal year after 

12 the first fiscal year for which new contracting par13 ties receive an amount of funding per eligible Indian 

14 student that is equal to or greater than the amount 

15 of funding per eligible Indian student received by ex16 isting contracting parties for the fiscal year pre17 ceding the date of enactment of the JOM Mod18 ernization Act. 

19 ‘‘(g) FUNDING ALLOCATION AND REFORM.— 

20 ‘‘(1) PRESENT DAY PER STUDENT FUNDING AL21 LOCATION.—Not later than 60 days after an initial 

22 determination is made under subsection (c), the Sec23 retary shall establish, in consultation with con24 tracting parties, a present day per student funding 


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1 allocation that shall serve as a funding baseline 

2 under this Act. 

3 ‘‘(2) FUNDING REFORM.—The Secretary may 

4 make recommendations for legislation to increase the 

5 amount of funds available per eligible Indian student 

6 through contracts under this Act to equal to or 

7 greater than the amount of funds that were available 

8 per eligible Indian student through contracts under 

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

10 additional sources of funding that do not reallocate 

11 existing funds otherwise utilized by Indian students 

12 served— 

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

14 or 

15 ‘‘(B) under title VI of the Elementary and 

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

17 7401 et seq.). 

18 ‘‘(3) INCREASES IN PROGRAM FUNDING.— 

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

20 (f) and subparagraphs (B) and (C), for any fis21 cal year for which the amount appropriated to 

22 carry out this Act exceeds the amount appro23 priated to carry out this Act for the preceding 

24 fiscal year, the excess amounts shall— 


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1 ‘‘(i) be allocated only to those con2 tracting parties that have not received 

3 their full per student funding allocation as 

4 determined pursuant to paragraph (1); and 

5 ‘‘(ii) be allocated first to new con6 tracting parties that have not received 

7 their full per student funding allocation as 

8 determined pursuant to paragraph (1). 

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

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

11 year for which each contracting party receives 

12 their full per student funding allocation as de13 termined pursuant to paragraph (1). 

14 ‘‘(C) FUTURE ALLOCATIONS.—Allocations 

15 of appropriations for fiscal years after the first 

16 fiscal year for which each contracting party re17 ceives their full per student funding allocation 

18 as determined pursuant to paragraph (1) shall 

19 be made at the discretion of the Secretary, in 

20 consultation with Indian tribes and contracting 

21 parties. 

22 ‘‘(h) INCREASED GEOGRAPHICAL AND TRIBAL PAR23 TICIPATION IN THE JOHNSON-O’MALLEY SUPPLE24 MENTARY EDUCATION PROGRAM.—To the maximum ex25 tent practicable, the Secretary shall consult with Indian 


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1 tribes and contact State educational agencies and local 

2 educational agencies that have not previously entered into 

3 a contract under this Act— 

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

5 tribes and State educational agencies and local edu6 cational agencies in entering into such contracts; 

7 and 

8 ‘‘(2) to share information relating to the proc9 ess for entering into a contract under this Act. 

10 ‘‘(i) RULEMAKING.—Not later than one year after the 

11 date of enactment of the JOM Modernization Act, the Sec12 retary, acting through the Director of the Bureau of In13 dian Education, shall undertake and complete a rule14 making process, following the provisions of subchapter II 

15 of chapter 5 of title 5, United States Code, to— 

16 ‘‘(1) determine how the regulatory definition of 

17 ‘eligible Indian student’ may be revised to clarify eli18 gibility requirements for contracting parties under 

19 this Act; 

20 ‘‘(2) determine, as necessary, how the funding 

21 formula described in section 273.31 of title 25, Code 

22 of Federal Regulations (as in effect on the day be23 fore the date of enactment of the JOM Moderniza24 tion Act) may be clarified and revised to ensure full 


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1 participation of contracting parties and provide clar2 ity on the funding process under this Act; and 

3 ‘‘(3) otherwise reconcile and modernize the 

4 rules to comport with the activities of the con5 tracting parties under this Act as of the date of en6 actment of the JOM Modernization Act. 

7 ‘‘(j) STUDENT PRIVACY.—The Secretary shall ensure 

8 that data is collected and each report is prepared under 

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

10 Indian students in accordance with section 444 of the 

11 General Education Provisions Act (commonly referred to 

12 as the Family Educational Rights and Privacy Act of 

13 1974) (20 U.S.C. 1232g). 

14 ‘‘(k) GAO REPORT.—Not later than 2 years after the 

15 date of enactment of the JOM Modernization Act, the 

16 Comptroller General shall— 

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

18 this section during the preceding two-year period, in19 cluding any factors impacting— 

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

21 the number of eligible Indian students under 

22 this section; 

23 ‘‘(B) the communication between the Bu24 reau of Indian Education and contracting par25 ties; and 


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

2 Education to ensure accurate and sufficient dis3 tribution of funding for Indian students; 

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

5 the review under paragraph (1) to— 

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

7 the Senate; 

8 ‘‘(B) the Subcommittee on Interior, Envi9 ronment, and Related Agencies of the Com10 mittee on Appropriations of the Senate; 

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

12 and Alaska Native Affairs of the Committee on 

13 Natural Resources of the House of Representa14 tives; and 

15 ‘‘(D) the Subcommittee on Interior, Envi16 ronment, and Related Agencies of the Com17 mittee on Appropriations of the House of Rep18 resentatives; and 

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

20 ‘‘(l) EFFECT.—Nothing in this section— 

21 ‘‘(1) creates a new program or duplicates pro22 gram activities under this Act; or 

23 ‘‘(2) replaces or diminishes the effect of regula24 tions to carry out this Act existing on the day before 


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1 the date of enactment of the JOM Modernization 

2 Act, unless expressly provided in this section.’’. 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Johnson-O’Malley Sup5 plemental Indian Education Program Modernization Act’’. 

6 SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UP7 DATE. 

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

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

10 amended by adding at the end the following: 

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

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

13 following definitions apply: 

14 ‘‘(1) CONTRACTING PARTY.—The term ‘con15 tracting party’ means an entity that has a contract 

16 through a program authorized under this Act. 

17 ‘‘(2) ELIGIBLE ENTITY.—The term ‘eligible enti18 ty’ means an entity that is eligible to apply for a con19 tract for a supplemental or operational support pro20 gram under this Act, as outlined in section 1. 

21 ‘‘(3) EXISTING CONTRACTING PARTY.—The term 

22 ‘existing contracting party’ means a contracting 

23 party that has a contract under this Act that is in 

24 effect on the date of enactment of the JOM Moderniza25 tion Act. 


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

2 ‘JOM Modernization Act’ means the Johnson3 O’Malley Supplemental Indian Education Program 

4 Modernization Act. 

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

6 contracting party’ means an entity that enters into a 

7 contract under this Act after the date of enactment of 

8 the JOM Modernization Act. 

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

10 the Secretary of the Interior. 

11 ‘‘(b) DETERMINATION OF THE NUMBER OF ELIGIBLE

12 INDIAN STUDENTS.— 

13 ‘‘(1) INITIAL DETERMINATIONS.— 

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

15 make an initial determination of the number of 

16 eligible Indian students served or potentially 

17 served by each eligible entity in accordance with 

18 subparagraph (B). 

19 ‘‘(B) PROCESS FOR MAKING THE INITIAL

20 DETERMINATION.— 

21 ‘‘(i) PRELIMINARY REPORT.—Not later 

22 than 180 days after the date of enactment 

23 of the JOM Modernization Act, the Sec24 retary shall publish a preliminary report 

25 describing the number of eligible Indian 


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1 students served or potentially served by each 

2 eligible entity, using the most applicable 

3 and accurate data (as determined by the 

4 Secretary in consultation with eligible enti5 ties) from the fiscal year preceding the fis6 cal year for which the initial determination 

7 is to be made from— 

8 ‘‘(I) the Bureau of the Census; 

9 ‘‘(II) the National Center for 

10 Education Statistics; or 

11 ‘‘(III) the Office of Indian Edu12 cation of the Department of Education. 

13 ‘‘(ii) DATA RECONCILIATION.—To im14 prove the accuracy of the preliminary re15 port described in clause (i) prior to pub16 lishing, the Secretary shall reconcile the 

17 data described in the preliminary report 

18 with— 

19 ‘‘(I) each existing contracting 

20 party’s data regarding the number of 

21 eligible Indian students served by the 

22 existing contracting party for the fiscal 

23 year preceding the fiscal year for 

24 which the initial determination is 

25 made; and 


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1 ‘‘(II) identifiable tribal enrollment 

2 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 pe7 riod to gain feedback about the preliminary 

8 report from eligible entities, which the Sec9 retary shall take into consideration in pre10 paring the final report described in clause 

11 (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 each 

18 eligible entity, including justification for 

19 not including any feedback gained during 

20 such consultation, if applicable. 

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

22 academic year following the fiscal year for which an 

23 initial determination is made under paragraph (1) to 

24 determine the number of eligible Indian students 

25 served or potentially served by a contracting party, 


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1 the Secretary shall determine the number of eligible 

2 Indian students served by the contracting party based 

3 on the reported eligible Indian student count numbers 

4 identified through the reporting process described in 

5 subsection (c). 

6 ‘‘(c) CONTRACTING PARTY STUDENT COUNT REPORT7 ING COMPLIANCE.— 

8 ‘‘(1) IN GENERAL.—For each academic year fol9 lowing the fiscal year for which an initial determina10 tion is made under subsection (b) to determine the 

11 number of eligible Indian students served or poten12 tially served by a contracting party, the contracting 

13 party shall submit to the Secretary a report describ14 ing the number of eligible Indian students who were 

15 served using amounts allocated to such party under 

16 this Act during the previous fiscal year. 

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

18 that fails to submit a report under paragraph (1) 

19 shall receive no amounts under this Act for the fiscal 

20 year following the academic year for which the report 

21 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 prepare 

12 an annual report, including the most recent deter13 mination of the number of eligible Indian students 

14 served by each contracting party, recommendations 

15 on appropriate funding levels for the program based 

16 on such determination, and an assessment of the con17 tracts under this Act that the Secretary— 

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

19 the Department of the Interior for each fiscal 

20 year; and 

21 ‘‘(B) shall submit to— 

22 ‘‘(i) the Committee on Indian Affairs 

23 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 Senate; 

4 ‘‘(iii) the Committee on Education and 

5 the Workforce of the House of Representa6 tives; and 

7 ‘‘(iv) the Subcommittee on Interior, 

8 Environment, and Related Agencies of the 

9 Committee on Appropriations of the House 

10 of Representatives. 

11 ‘‘(2) MANNER OF PREPARATION.—The Secretary 

12 shall prepare the report under paragraph (1) in a 

13 manner so as to prevent or minimize new adminis14 trative burdens on contracting parties receiving funds 

15 under this Act. 

16 ‘‘(e) HOLD HARMLESS.— 

17 ‘‘(1) INITIAL HOLD HARMLESS.— 

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

19 under subparagraph (B) and subject to subpara20 graphs (C) and (D), for a fiscal year, an existing 

21 contracting party shall not receive an amount 

22 under this Act that is less than the amount that 

23 such existing contracting party received under 

24 this Act for the fiscal year preceding the date of 

25 enactment of the JOM Modernization Act. 


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1 ‘‘(B) EXCEPTIONS.— 

2 ‘‘(i) IN GENERAL.—An existing con3 tracting party shall receive an amount 

4 under this Act for a fiscal year that is less 

5 than the amount that the existing con6 tracting party received under this Act for 

7 the fiscal year preceding the date of enact8 ment of the JOM Modernization Act, if 1 or 

9 more of the following conditions is met: 

10 ‘‘(I) FAILURE TO REPORT.—The 

11 existing contracting party failed to 

12 submit the report described in sub13 section (c) that was most recently due 

14 from the date of the determination. 

15 ‘‘(II) VIOLATIONS OF CONTRACT

16 OR LAW.—The Secretary has found 

17 that the existing contracting party has 

18 violated the terms of a contract entered 

19 into under this Act or has otherwise 

20 violated Federal law. 

21 ‘‘(III) STUDENT COUNT DE22 CREASE.—The number of eligible In23 dian students reported by such existing 

24 contracting party under subsection (c) 

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1 gible Indian students served by the ex2 isting contracting party in the fiscal 

3 year preceding the date of enactment of 

4 the JOM Modernization Act. 

5 ‘‘(ii) AMOUNT OF FUNDING REDUCTION

6 FOR EXISTING CONTRACTING PARTIES RE7 PORTING DECREASED STUDENT COUNTS.—A 

8 reduction in an amount pursuant to clause 

9 (i)(III) shall not be done in such a manner 

10 that the existing contracting party receives 

11 an amount of funding per eligible Indian 

12 student that is less than the amount of 

13 funding per eligible Indian student such 

14 party received for the fiscal year preceding 

15 the date of enactment of the JOM Mod16 ernization Act. 

17 ‘‘(C) RATABLE REDUCTIONS IN APPROPRIA18 TIONS.—If the funds available under this Act for 

19 a fiscal year are insufficient to pay the full 

20 amounts that all existing contracting parties are 

21 eligible to receive under subparagraph (A) for the 

22 fiscal year, the Secretary shall ratably reduce 

23 those amounts for the fiscal year. 


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

2 to be effective 4 years after the date of enactment 

3 of the JOM Modernization Act. 

4 ‘‘(2) MAXIMUM DECREASE AFTER 4 YEARS.—Be5 ginning 4 years after the date of enactment of the 

6 JOM Modernization Act, no contracting party shall 

7 receive for a fiscal year more than a 10 percent de8 crease in funding per eligible Indian student from the 

9 previous fiscal year. 

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

11 ‘‘(1) PRESENT DAY PER STUDENT FUNDING AL12 LOCATION.—Not later than 60 days after an initial 

13 determination is made under subsection (b), the Sec14 retary shall propose, in consultation with Indian 

15 tribes and contracting parties, a present day per stu16 dent funding allocation that shall serve as a funding 

17 baseline under this Act. 

18 ‘‘(2) FUNDING REFORM.—The Secretary may 

19 make recommendations for legislation to increase the 

20 amount of funds available per eligible Indian student 

21 through contracts under this Act to equal to or greater 

22 than the amount of funds that were available per eli23 gible Indian student through contracts under this Act 

24 for fiscal year 1995, and attempt to identify addi25 tional sources of funding that do not reallocate existVerDate Sep 11 2014 21:44 Jan 24, 2018 Jkt 079200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6203 E:\BILLS\S943.RS S943

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1 ing funds otherwise utilized by Indian students 

2 served— 

3 ‘‘(A) by the Bureau of Indian Education; or 

4 ‘‘(B) under title VI of the Elementary and 

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

6 7401 et seq.). 

7 ‘‘(3) INCREASES IN PROGRAM FUNDING.— 

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

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

10 which the amount appropriated to carry out this 

11 Act exceeds the amount appropriated to carry 

12 out this Act for the preceding fiscal year, the ex13 cess amounts shall— 

14 ‘‘(i) be allocated only to those con15 tracting parties that did not receive their 

16 full per student funding allocation for the 

17 previous fiscal year; and 

18 ‘‘(ii) be allocated first to new con19 tracting parties that did not receive their 

20 full per student funding allocation for the 

21 previous fiscal year. 

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

23 (A) shall have no effect after the first fiscal year 

24 for which each contracting party receives their 

25 full per student funding allocation. 


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1 ‘‘(g) INCREASED GEOGRAPHICAL AND TRIBAL PAR2 TICIPATION IN THE JOHNSON-O’MALLEY SUPPLEMENTARY

3 EDUCATION PROGRAM.—To the maximum extent prac4 ticable, the Secretary shall consult with Indian tribes and 

5 contact State educational agencies and local educational 

6 agencies that have not previously entered into a contract 

7 under this Act— 

8 ‘‘(1) to determine the interest of the Indian tribes 

9 and State educational agencies and local educational 

10 agencies in entering into such contracts; and 

11 ‘‘(2) to share information relating to the process 

12 for entering into a contract under this Act. 

13 ‘‘(h) RULEMAKING.— 

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

15 the date of enactment of the JOM Modernization Act, 

16 the Secretary, acting through the Director of the Bu17 reau of Indian Education, shall undertake and com18 plete a rulemaking process, following the provisions of 

19 subchapter II of chapter 5 of title 5, United States 

20 Code, to— 

21 ‘‘(A) determine how the regulatory defini22 tion of ‘eligible Indian student’ may be revised 

23 to clarify eligibility requirements for contracting 

24 parties under this Act; 


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1 ‘‘(B) determine, as necessary, how the fund2 ing formula described in section 273.31 of title 

3 25, Code of Federal Regulations (as in effect on 

4 the day before the date of enactment of the JOM 

5 Modernization Act) may be clarified and revised 

6 to ensure full participation of contracting par7 ties and provide clarity on the funding process 

8 under this Act; and 

9 ‘‘(C) otherwise reconcile and modernize the 

10 rules to comport with the activities of the con11 tracting parties under this Act as of the date of 

12 enactment of the JOM Modernization Act. 

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

14 date the rulemaking under paragraph (1) is complete, 

15 the Secretary shall submit a report to Congress de16 scribing the results of such rulemaking and necessary 

17 recommendations to ensure the full implementation of 

18 such rulemaking. 

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

20 that data is collected and each report is prepared under 

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

22 Indian students in accordance with section 444 of the Gen23 eral Education Provisions Act (commonly referred to as the 

24 Family Educational Rights and Privacy Act of 1974) (20 

25 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 pub3 lished, 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 this 

9 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 the 

17 review under paragraph (1) to— 

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

19 Senate; 

20 ‘‘(B) the Subcommittee on Interior, Envi21 ronment, and Related Agencies of the Committee 

22 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 Committee 

5 on Appropriations of the House of Representa6 tives; 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 Act, 

14 unless expressly provided in this section.’’. 


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Calendar No. 295 

115TH CONGRESS 

2D SESSION S. 943 

[Report No. 115–201] 

A BILL 

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 

JANUARY 24, 2018 

Reported with an amendment 


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