§5348 — Title 25 Indians | U.S. Code

Summary

Requires the Secretary of the Interior to count how many eligible Indian students each eligible entity or contracting party serves and to use those counts for funding and reports. Definitions: contracting party = an entity with a contract under these programs; eligible entity = an entity that can apply for a contract; existing contracting party = had a contract in effect on December 31, 2018; new contracting party = got a contract after December 31, 2018; JOM Modernization Act = the Johnson-O’Malley modernization law; Secretary = the Secretary of the Interior. The Secretary must publish a preliminary student-count report within 180 days after December 31, 2018, using Census, NCES, or the Department of Education Office of Indian Education data, check that data against existing contractors’ counts and tribal enrollment, allow a 60-day comment period, and then issue a final report within 120 days after the comments end. After that, each year the Secretary will use reports from contracting parties about how many eligible Indian students were served and how contract funds were spent. If a contracting party does not send its required report, it gets no funds for the next fiscal year. Existing contractors are generally protected from getting less than they received for the year before December 31, 2018, unless they failed to report, broke contract or law, or reported fewer students; any cut for fewer students cannot lower per-student funding below the pre-2018 level. Those protections end 4 years after December 31, 2018; after that no party can lose more than a 10 percent per-student funding drop from the prior year. If total funds are too small, the Secretary reduces payments fairly. The Secretary must give deadlines, help with reporting, consult tribes and others not yet contracted, finish rulemaking within 1 year after December 31, 2018 to clarify student eligibility and the funding formula and report to Congress within 30 days after rulemaking ends, protect student privacy under FERPA, and provide annual reports to Congress and the public. The Comptroller General must review implementation within 18 months after the final report and publish its findings. The rules do not create a new program or replace existing regulations unless clearly said.

Title 25, §5348

Indians — Source: USLM XML via OLRC

(a)For the purposes of sections 5342 to 5348 of this title, the following definitions apply:

(1)The term “contracting party” means an entity that has a contract through a program authorized under sections 5342 to 5348 of this title.

(2)The term “eligible entity” means an entity that is eligible to apply for a contract for a supplemental or operational support program under sections 5342 to 5348 of this title, as outlined in section 5342 of this title.

(3)The term “existing contracting party” means a contracting party that has a contract under sections 5342 to 5348 of this title that is in effect on December 31, 2018.

(4)The term “JOM Modernization Act” means the Johnson-O’Malley Supplemental Indian Education Program Modernization Act.

(5)The term “new contracting party” means an entity that enters into a contract under sections 5342 to 5348 of this title after December 31, 2018.

(6)The term “Secretary” means the Secretary of the Interior.

(b)(1)(A)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)(i)Not later than 180 days after December 31, 2018, 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)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)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)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)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)(1)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 sections 5342 to 5348 of this title 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)A contracting party that fails to submit a report under paragraph (1) shall receive no amounts under sections 5342 to 5348 of this title for the fiscal year following the academic year for which the report should have been submitted.

(3)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)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)(1)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 sections 5342 to 5348 of this title that the Secretary—

(A)may include in the budget request of the Department of the Interior for each fiscal year;

(B)shall submit to—

(i)the Committee on Indian Affairs of the Senate;

(ii)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;

(iii)the Committee on Education and the Workforce of the House of Representatives; and

(iv)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and

(C)shall make publicly available.

(2)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 sections 5342 to 5348 of this title.

(e)(1)(A)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 sections 5342 to 5348 of this title that is less than the amount that such existing contracting party received under sections 5342 to 5348 of this title for the fiscal year preceding December 31, 2018.

(B)(i)An existing contracting party shall receive an amount under sections 5342 to 5348 of this title for a fiscal year that is less than the amount that the existing contracting party received under sections 5342 to 5348 of this title for the fiscal year preceding December 31, 2018, if one or more of the following conditions is met:

(I)The existing contracting party failed to submit a complete report described in subsection (c) that was most recently due from the date of the determination.

(II)The Secretary has found that the existing contracting party has violated the terms of a contract entered into under sections 5342 to 5348 of this title or has otherwise violated Federal law.

(III)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 December 31, 2018.

(ii)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 December 31, 2018.

(C)If the funds available under sections 5342 to 5348 of this title 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)This paragraph shall cease to be effective 4 years after December 31, 2018.

(2)Beginning 4 years after December 31, 2018, 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)(1)The Secretary may make recommendations for legislation to increase the amount of funds available per eligible Indian student through contracts under sections 5342 to 5348 of this title to equal to or greater than the amount of funds that were available per eligible Indian student through contracts under sections 5342 to 5348 of this title 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)(A)Subject to subsection (e) and subparagraph (B), for any fiscal year for which the amount appropriated to carry out sections 5342 to 5348 of this title exceeds the amount appropriated to carry out sections 5342 to 5348 of this title 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)Subparagraph (A) shall have no effect after the first fiscal year for which each contracting party receives their full per student funding allocation.

(g)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 sections 5342 to 5348 of this title—

(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 sections 5342 to 5348 of this title.

(h)(1)Not later than 1 year after December 31, 2018, 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, to—

(A)determine how the regulatory definition of “eligible Indian student” may be revised to clarify eligibility requirements for contracting parties under sections 5342 to 5348 of this title;

(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 December 31, 2018) may be clarified and revised to ensure full participation of contracting parties and provide clarity on the funding process under sections 5342 to 5348 of this title; and

(C)otherwise reconcile and modernize the rules to comport with the activities of the contracting parties under sections 5342 to 5348 of this title as of December 31, 2018.

(2)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)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 1232g of title 20 (commonly referred to as the Family Educational Rights and Privacy Act of 1974).

(j)Not later than 18 months after the final report described in subsection (b)(1)(B)(iv) is published, the Comptroller General shall—

(1)conduct a review of the implementation of this section during the preceding 2-year period, including any factors impacting—

(A)the accuracy of the determinations of the number of eligible Indian students under this section;

(B)the communication between the Bureau of Indian Education and contracting parties; and

(C)the efforts by the Bureau of Indian Education to ensure accurate and sufficient distribution of funding for Indian students;

(2)submit a report describing the results of the review under paragraph (1) to—

(A)the Committee on Indian Affairs of the Senate;

(B)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;

(C)the Subcommittee on Indian, Insular and Alaska Native Affairs of the Committee on Natural Resources of the House of Representatives; and

(D)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and

(3)make such report publicly available.

(k)Nothing in this section—

(1)creates a new program or duplicates program activities under sections 5342 to 5348 of this title; or

(2)replaces or diminishes the effect of regulations to carry out sections 5342 to 5348 of this title existing on the day before December 31, 2018, unless expressly provided in this section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Johnson-O’Malley Supplemental Indian Education Program Modernization Act, referred to subsec. (a)(4), is Pub. L. 115–404, Dec. 31, 2018, 132 Stat. 5349, which enacted this section and provisions set out as a note under section 5301 of this title. For complete classification of this Act to the Code, see

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of 2018 Amendment note set out under section 5301 of this title and Tables. The Elementary and Secondary Education Act of 1965, referred to in subsec. (f)(1)(B), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27. Title VI of the Act is classified generally to subchapter VI (§ 7401 et seq.) of chapter 70 of Title 20, Education. For complete classification of this Act to the Code, see

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note set out under section 6301 of Title 20 and Tables.

§5348 Computation of Student Count

Summary

Title 25, §5348

Notes & Related Subsidiaries

Editorial Notes

References in Text

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