In the House of Representatives, U. S., 

December 11, 2018. 

Resolved, That the bill from the Senate (S. 943) entitled 

‘‘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 JohnsonO’Malley Act, and for other purposes.’’, do pass with the following 

AMENDMENT: 

Strike out all after the enacting clause and insert: 

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 UP5 DATE. 

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, the 

11 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. 
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1 ‘‘(2) ELIGIBLE ENTITY.—The term ‘eligible enti2 ty’ means an entity that is eligible to apply for a con3 tract for a supplemental or operational support pro4 gram under this Act, as outlined in section 1. 

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

6 ‘existing contracting party’ means a contracting 

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

8 effect on the date of enactment of the JOM Moderniza9 tion Act. 

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

11 ‘JOM Modernization Act’ means the Johnson12 O’Malley Supplemental Indian Education Program 

13 Modernization Act. 

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

15 contracting party’ means an entity that enters into a 

16 contract under this Act after the date of enactment of 

17 the JOM Modernization Act. 

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

19 the Secretary of the Interior. 

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

21 INDIAN STUDENTS.— 

22 ‘‘(1) INITIAL DETERMINATIONS.— 

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

24 make an initial determination of the number of 

25 eligible Indian students served or potentially 
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1 served by each eligible entity in accordance with 

2 subparagraph (B). 

3 ‘‘(B) PROCESS FOR MAKING THE INITIAL

4 DETERMINATION.— 

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

6 than 180 days after the date of enactment 

7 of the JOM Modernization Act, the Sec8 retary shall publish a preliminary report 

9 describing the number of eligible Indian 

10 students served or potentially served by each 

11 eligible entity, using the most applicable 

12 and accurate data (as determined by the 

13 Secretary in consultation with eligible enti14 ties) from the fiscal year preceding the fis15 cal year for which the initial determination 

16 is to be made from— 

17 ‘‘(I) the Bureau of the Census; 

18 ‘‘(II) the National Center for 

19 Education Statistics; or 

20 ‘‘(III) the Office of Indian Edu21 cation of the Department of Education. 

22 ‘‘(ii) DATA RECONCILIATION.—To im23 prove the accuracy of the preliminary re24 port described in clause (i) prior to pub25 lishing, the Secretary shall reconcile the 
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1 data described in the preliminary report 

2 with— 

3 ‘‘(I) each existing contracting 

4 party’s data regarding the number of 

5 eligible Indian students served by the 

6 existing contracting party for the fiscal 

7 year preceding the fiscal year for 

8 which the initial determination is 

9 made; and 

10 ‘‘(II) identifiable tribal enrollment 

11 information. 

12 ‘‘(iii) COMMENT PERIOD.—After pub13 lishing the preliminary report under clause 

14 (i) in accordance with clause (ii), the Sec15 retary shall establish a 60-day comment pe16 riod to gain feedback about the preliminary 

17 report from eligible entities, which the Sec18 retary shall take into consideration in pre19 paring the final report described in clause 

20 (iv). 

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

22 120 days after concluding the consultation 

23 described in clause (iii), the Secretary shall 

24 publish a final report on the initial deter25 mination of the number of eligible Indian 
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1 students served or potentially served by each 

2 eligible entity, including justification for 

3 not including any feedback gained during 

4 such consultation, if applicable. 

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

6 academic year following the fiscal year for which an 

7 initial determination is made under paragraph (1) to 

8 determine the number of eligible Indian students 

9 served or potentially served by a contracting party, 

10 the Secretary shall determine the number of eligible 

11 Indian students served by the contracting party based 

12 on the reported eligible Indian student count numbers 

13 identified through the reporting process described in 

14 subsection (c). 

15 ‘‘(c) CONTRACTING PARTY STUDENT COUNT REPORT16 ING COMPLIANCE.— 

17 ‘‘(1) IN GENERAL.—For each academic year fol18 lowing the fiscal year for which an initial determina19 tion is made under subsection (b) to determine the 

20 number of eligible Indian students served or poten21 tially served by a contracting party, the contracting 

22 party shall submit to the Secretary a report describ23 ing the number of eligible Indian students who were 

24 served using amounts allocated to such party under 

25 this Act during the previous fiscal year. The report 
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1 shall also include an accounting of the amounts and 

2 purposes for which the contract funds were expended. 

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

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

5 shall receive no amounts under this Act for the fiscal 

6 year following the academic year for which the report 

7 should have been submitted. 

8 ‘‘(3) NOTICE.—The Secretary shall provide con9 tracting parties with timely information relating 

10 to— 

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

12 and 

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

14 outlined in paragraph (2). 

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

16 acting through the Director of the Bureau of Indian 

17 Education, shall provide technical assistance and 

18 training on compliance with the reporting require19 ments of this subsection to contracting parties. 

20 ‘‘(d) ANNUAL REPORT.— 

21 ‘‘(1) IN GENERAL.—The Secretary shall prepare 

22 an annual report, including the most recent deter23 mination of the number of eligible Indian students 

24 served by each contracting party, recommendations 

25 on appropriate funding levels for the program based 
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1 on such determination, and an assessment of the con2 tracts under this Act that the Secretary— 

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

4 the Department of the Interior for each fiscal 

5 year; 

6 ‘‘(B) shall submit to— 

7 ‘‘(i) the Committee on Indian Affairs 

8 of the Senate; 

9 ‘‘(ii) the Subcommittee on Interior, 

10 Environment, and Related Agencies of the 

11 Committee on Appropriations of the Senate; 

12 ‘‘(iii) the Committee on Education and 

13 the Workforce of the House of Representa14 tives; and 

15 ‘‘(iv) the Subcommittee on Interior, 

16 Environment, and Related Agencies of the 

17 Committee on Appropriations of the House 

18 of Representatives; and 

19 ‘‘(C) shall make publicly available. 

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

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

22 manner so as to prevent or minimize new adminis23 trative burdens on contracting parties receiving funds 

24 under this Act. 

25 ‘‘(e) HOLD HARMLESS.— 
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1 ‘‘(1) INITIAL HOLD HARMLESS.— 

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

3 under subparagraph (B) and subject to subpara4 graphs (C) and (D), for a fiscal year, an existing 

5 contracting party shall not receive an amount 

6 under this Act that is less than the amount that 

7 such existing contracting party received under 

8 this Act for the fiscal year preceding the date of 

9 enactment of the JOM Modernization Act. 

10 ‘‘(B) EXCEPTIONS.— 

11 ‘‘(i) IN GENERAL.—An existing con12 tracting party shall receive an amount 

13 under this Act for a fiscal year that is less 

14 than the amount that the existing con15 tracting party received under this Act for 

16 the fiscal year preceding the date of enact17 ment of the JOM Modernization Act, if one 

18 or more of the following conditions is met: 

19 ‘‘(I) FAILURE TO REPORT.—The 

20 existing contracting party failed to 

21 submit a complete report described in 

22 subsection (c) that was most recently 

23 due from the date of the determination. 

24 ‘‘(II) VIOLATIONS OF CONTRACT

25 OR LAW.—The Secretary has found 
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1 that the existing contracting party has 

2 violated the terms of a contract entered 

3 into under this Act or has otherwise 

4 violated Federal law. 

5 ‘‘(III) STUDENT COUNT DE6 CREASE.—The number of eligible In7 dian students reported by such existing 

8 contracting party under subsection (c) 

9 has decreased below the number of eli10 gible Indian students served by the ex11 isting contracting party in the fiscal 

12 year preceding the date of enactment of 

13 the JOM Modernization Act. 

14 ‘‘(ii) AMOUNT OF FUNDING REDUCTION

15 FOR EXISTING CONTRACTING PARTIES RE16 PORTING DECREASED STUDENT COUNTS.—A 

17 reduction in an amount pursuant to clause 

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

19 that the existing contracting party receives 

20 an amount of funding per eligible Indian 

21 student that is less than the amount of 

22 funding per eligible Indian student such 

23 party received for the fiscal year preceding 

24 the date of enactment of the JOM Mod25 ernization Act. 
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1 ‘‘(C) RATABLE REDUCTIONS IN APPROPRIA2 TIONS.—If the funds available under this Act for 

3 a fiscal year are insufficient to pay the full 

4 amounts that all existing contracting parties are 

5 eligible to receive under subparagraph (A) for the 

6 fiscal year, the Secretary shall ratably reduce 

7 those amounts for the fiscal year. 

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

9 to be effective 4 years after the date of enactment 

10 of the JOM Modernization Act. 

11 ‘‘(2) MAXIMUM DECREASE AFTER 4 YEARS.—Be12 ginning 4 years after the date of enactment of the 

13 JOM Modernization Act, no contracting party shall 

14 receive for a fiscal year more than a 10 percent de15 crease in funding per eligible Indian student from the 

16 previous fiscal year. 

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

18 ‘‘(1) 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 exist-
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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 ‘‘(2) 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, local educational agen6 cies, and Alaska Native organizations that have not pre7 viously entered into a contract under this Act— 

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

9 tribes, State educational agencies, local educational 

10 agencies, and Alaska Native organizations, in enter11 ing into such contracts; and 

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

13 for entering into a contract under this Act. 

14 ‘‘(h) RULEMAKING.— 

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

16 the date of enactment of the JOM Modernization Act, 

17 the Secretary, acting through the Director of the Bu18 reau of Indian Education, shall undertake and com19 plete a rulemaking process, following the provisions of 

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

21 Code, to— 

22 ‘‘(A) determine how the regulatory defini23 tion of ‘eligible Indian student’ may be revised 

24 to clarify eligibility requirements for contracting 

25 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 2-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.’’. 

Attest: 

Clerk. 
115TH CONGRESS 

2D SESSION S. 943 

AMENDMENT