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
PL 115-404 (S.943), enacted 12/31/2018

132 STAT. 5349 
PUBLIC LAW 115–404—DEC. 31, 2018 
Public Law 115–404 
115th Congress 
An Act 
To direct the Secretary of the Interior to conduct an accurate comprehensive student 
count for the purposes of calculating formula allocations for programs under 
the Johnson-O’Malley Act, and for other purposes. 
Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Johnson-O’Malley Supplemental 
Indian Education Program Modernization Act’’. 
SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UPDATE. 
The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) (commonly 
referred to as the Johnson-O’Malley Act) is amended by adding 
at the end the following: 
‘‘SEC. 7. COMPUTATION OF STUDENT COUNT. 
‘‘(a) DEFINITIONS.—For the purposes of this Act, the following 
definitions apply: 
‘‘(1) CONTRACTING
PARTY.—The term ‘contracting party’ 
means an entity that has a contract through a program author-
ized 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 con-
tracting 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 Moderniza-
tion 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 STU-
DENTS.— 
‘‘(1) INITIAL DETERMINATIONS.— 
‘‘(A) IN GENERAL.—The Secretary shall make an initial 
determination of the number of eligible Indian students 
25 USC 5348. 
Johnson- 
O’Malley 
Supplemental 
Indian Education 
Program 
Modernization 
Act. 
25 USC 5301 
note. 
Dec. 31, 2018 
[S. 943] 
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132 STAT. 5350 
PUBLIC LAW 115–404—DEC. 31, 2018 
served or potentially served by each eligible entity in 
accordance with subparagraph (B). 
‘‘(B) PROCESS
FOR
MAKING
THE
INITIAL
DETERMINA-
TION.— 
‘‘(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 deter-
mined 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 Statis-
tics; 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 com-
ment 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 COMPLI-
ANCE.— 
‘‘(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 stu-
dents served or potentially served by a contracting party, the 
Publication. 
Consultation. 
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132 STAT. 5351 
PUBLIC LAW 115–404—DEC. 31, 2018 
contracting party shall submit to the Secretary a report 
describing the number of eligible Indian students who were 
served using amounts allocated to such party under this Act 
during the previous fiscal year. The report shall also include 
an accounting of the amounts and purposes for which the 
contract funds were expended. 
‘‘(2) FAILURE TO COMPLY.—A contracting party that fails 
to submit a report under paragraph (1) shall receive no amounts 
under this Act for the fiscal year following the academic year 
for which the report should have been submitted. 
‘‘(3) NOTICE.—The Secretary shall provide contracting par-
ties 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 con-
tracts under this Act that the Secretary— 
‘‘(A) may include in the budget request of the Depart-
ment of the Interior for each fiscal year; 
‘‘(B) shall submit to— 
‘‘(i) the Committee on Indian Affairs of the Senate; 
‘‘(ii) the Subcommittee on Interior, Environment, 
and Related Agencies of the Committee on Appropria-
tions 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 Appropria-
tions of the House of Representatives; and 
‘‘(C) shall make publicly available. 
‘‘(2) MANNER OF PREPARATION.—The Secretary shall pre-
pare 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 subpara-
graph (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 
Recommenda- 
tions. 
Assessment. 
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132 STAT. 5352 
PUBLIC LAW 115–404—DEC. 31, 2018 
contracting party received under this Act for the fiscal 
year preceding the date of enactment of the JOM Mod-
ernization Act, if one or more of the following condi-
tions is met: 
‘‘(I) FAILURE
TO
REPORT.—The existing con-
tracting party failed to submit a complete report 
described in subsection (c) that was most recently 
due from the date of the determination. 
‘‘(II) VIOLATIONS OF CONTRACT OR LAW.—The 
Secretary has found that the existing contracting 
party has violated the terms of a contract entered 
into under this Act or has otherwise violated Fed-
eral 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 enact-
ment 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 insuffi-
cient 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 effec-
tive 4 years after the date of enactment of the JOM Mod-
ernization 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 stu-
dent from the previous fiscal year. 
‘‘(f) FUNDING ALLOCATION AND REFORM.— 
‘‘(1) FUNDING
REFORM.—The Secretary may make rec-
ommendations 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 con-
tracts under this Act for fiscal year 1995, and attempt to 
identify additional sources of funding that do not reallocate 
existing funds otherwise utilized by Indian students served— 
‘‘(A) by the Bureau of Indian Education; or 
‘‘(B) under title VI of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 7401 et seq.). 
‘‘(2) INCREASES IN PROGRAM FUNDING.— 
Recommenda- 
tions. 
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132 STAT. 5353 
PUBLIC LAW 115–404—DEC. 31, 2018 
‘‘(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 con-
tracting party receives their full per student funding alloca-
tion. 
‘‘(g) INCREASED GEOGRAPHICAL AND TRIBAL PARTICIPATION IN 
THE JOHNSON-O’MALLEY SUPPLEMENTARY EDUCATION PROGRAM.— 
To the maximum extent practicable, the Secretary shall consult 
with Indian tribes and contact State educational agencies, local 
educational agencies, and Alaska Native organizations that have 
not previously entered into a contract under this Act— 
‘‘(1) to determine the interest of the Indian tribes, State 
educational agencies, local educational agencies, and Alaska 
Native organizations, in entering into such contracts; and 
‘‘(2) to share information relating to the process for entering 
into a contract under this Act. 
‘‘(h) RULEMAKING.— 
‘‘(1) IN GENERAL.—Not later than 1 year after the date 
of enactment of the JOM Modernization Act, the Secretary, 
acting through the Director of the Bureau of Indian Education, 
shall undertake and complete a rulemaking process, following 
the provisions of subchapter II of chapter 5 of title 5, United 
States Code, to— 
‘‘(A) determine how the regulatory definition of ‘eligible 
Indian student’ may be revised to clarify eligibility require-
ments 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 par-
ties 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 Moderniza-
tion 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 accord-
ance with section 444 of the General Education Provisions Act 
Recommenda- 
tions. 
Deadline. 
Determinations. 
Consultation. 
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132 STAT. 5354 
PUBLIC LAW 115–404—DEC. 31, 2018 
LEGISLATIVE HISTORY—S. 943: 
SENATE REPORTS: No. 115–201 (Comm. on Indian Affairs). 
CONGRESSIONAL RECORD, Vol. 164 (2018): 
Mar. 22, considered and passed Senate. 
Dec. 11, considered and passed House, amended. 
Dec. 19, Senate concurred in House amendment. 
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2018): 
Dec. 31, Presidential statement. 
(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 Comp-
troller General shall— 
‘‘(1) conduct a review of the implementation of this section 
during the preceding 2-year period, including any factors 
impacting— 
‘‘(A) the accuracy of the determinations of the number 
of eligible Indian students under this section; 
‘‘(B) the communication between the Bureau of Indian 
Education and contracting parties; and 
‘‘(C) the efforts by the Bureau of Indian Education 
to ensure accurate and sufficient distribution of funding 
for Indian students; 
‘‘(2) submit a report describing the results of the review 
under paragraph (1) to— 
‘‘(A) the Committee on Indian Affairs of the Senate; 
‘‘(B) the Subcommittee on Interior, Environment, and 
Related Agencies of the Committee on Appropriations of 
the Senate; 
‘‘(C) the Subcommittee on Indian, Insular and Alaska 
Native Affairs of the Committee on Natural Resources of 
the House of Representatives; and 
‘‘(D) the Subcommittee on Interior, Environment, and 
Related Agencies of the Committee on Appropriations of 
the House of Representatives; and 
‘‘(3) make such report publicly available. 
‘‘(k) EFFECT.—Nothing in this section— 
‘‘(1) creates a new program or duplicates program activities 
under this Act; or 
‘‘(2) replaces or diminishes the effect of regulations to carry 
out this Act existing on the day before the date of enactment 
of the JOM Modernization Act, unless expressly provided in 
this section.’’. 
Approved December 31, 2018. 
Public 
information. 
Review. 
Time period. 
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