On December 20, 2018, the Department of the Interior (DOI) released a Memorandum of Agreement (MOA) implementing the Indian Employment, Training and Related Services Consolidation Act of 2017 (Amended PL 477). The White House played a key role in coordinating the agencies around drafting the MOA. Now that the MOA is in place, DOI will begin to implement Amended PL 477. However, the MOA contains problematic limiting provisions, discussed below.
Background. The PL 477 program allows tribes and tribal organizations to combine certain federal funds made available for programs pertaining to employment, training, and related services into one holistic employment and training PL 477 plan designed and carried out by the tribe.
Amended PL 477. Amended PL 477, enacted on December 18, 2017, was a comprehensive amendment to the Indian Employment, Training and Related Services Demonstration Act of 1992 (as amended), commonly referred to as PL 477. In recognition of the program’s success, it reauthorized the PL 477 program as permanent rather than as a demonstration project and expanded the programs eligible for inclusion in a PL 477 plan, including by increasing the federal agencies covered. Amended PL 477 also contained clarifying language meant to stop federal agencies from impeding implementation of PL 477. It explicitly stated only one annual report is required, limited the reasons for denying a program’s integration, and created strict approval deadlines. Amended PL 477 had a statutory deadline of one year from its enactment for the agencies to develop and enter into an interdepartmental MOA on its implementation. (For further information on Amended PL 477, see our General Memorandum 18-009 of February 9, 2018.)
MOA. DOI took the position it would not implement Amended PL 477 until the MOA was in place. For this reason, the MOA provides the first insights into how the agencies are reading the breadth of Amended PL 477. The MOA contains the signatures of the heads of all 12 agencies covered by Amended PL 477, indicating their willingness to implement Amended PL 477, at least as provided for in the MOA. However, the MOA contains many provisions that will likely result in Amended PL 477’s implementation in ways that conflict with the spirit and text of Amended PL 477. Some of the major issues are discussed below.
First, the MOA gives affected agencies—agencies that operate programs a tribe seeks to incorporate into its PL 477 plan—significant power. Amended PL 477 states DOI has “exclusive authority” to approve or deny a PL 477 plan and thereafter implements the plan. But the MOA gives affected agencies authority to determine if the programs they operate are eligible for inclusion in a PL 477 plan and a role in almost all aspects of implementation, including drafting reporting forms, reviewing reports, monitoring, and technical assistance.
Second, the MOA limits the programs eligible for inclusion in a PL 477 plan. Amended PL 477 dictates a program is eligible for inclusion if it is operated by a covered agency, carries out a covered purpose, and receives a covered type of funding. The MOA limits the covered purposes and funding and provides “discretion” when examining whether to approve inclusion of a program.
Similarly, the MOA provides more opportunities for disapproval associated with a waiver request. Amended PL 477 allows tribes to request and affected agencies to approve waivers of applicable statutory or administrative requirements. The MOA states a tribe must request a waiver if an affected agency directs it to do so, and it states an affected agency may conduct a risk assessment of a tribe’s financial and programmatic compliance before approving a request. It directs an affected agency to disapprove inclusion of a program in a PL 477 plan if the affected agency requests and the tribe denies an extension of time for review of a waiver request.
Last, the MOA calls on the agencies to request multiple extensions of deadlines, but Amended PL 477 says plans and waiver requests not denied within a 90-day window are deemed approved. Additionally, the text of Amended PL 477 permits only one extension of up to 90 days for plan approval, and it does not allow extensions for waiver requests.
Leading up to release of the MOA, a group of representatives of the PL 477 Tribal Work Group met at the White House with federal officials to discuss the MOA. During the meeting, Work Group members emphasized that the MOA and implementation must be consistent with the text of Amended PL 477. It became clear there were certain areas within the MOA that would raise issues, including those discussed above.
Please let us know if we may provide further information on the PL 477 program, the MOA, or implementation of Amended PL 477.
