1. PL 477 Amendment Implementation
Steve Osborne, Katie Klass, Geoff Strommer
Hobbs, Straus, Dean & Walker, LLP
Attorney at Hobbs Straus
Portland, OR office
I’m going to talk about implementation of amended 477, including the types of programs eligible for inclusion in a 477 plan and the process for submitting, reviewing, approving, and implementing a 477 plan.

2. Indian Employment, Training and Related Services Consolidation Act of 2017 Public Law 115-93
Amends Indian Employment, Training and Related Services Demonstration Act, more commonly referred to as PL 477, codified at 25 U.S.C. §§ 3401–3417.
Major Changes
Reauthorizes PL 477 program as permanent rather than demonstration project.
Expands types of programs and funding that may be integrated in PL 477 plans, including by including more agencies.
Clarifies PL 477 plans require only one annual report or audit and do not require reporting dollar-for-dollar by program.
Creates strict deadlines and processes for review and approval of PL 477 plans, including for agencies to waive requirements of integrated programs.
The amendment, enacted on December 18, 2017, serves multiple important purposes in strengthening the PL 477 program.
First, it reauthorizes the PL 477 program as permanent rather than as a demonstration project.
Second, it expands the types of programs that may be integrated in PL 477 plans, including integration beyond only the Departments of the Interior, Health and Human Services, Labor, and Education.
Third, it clarifies that PL 477 plans require only one annual report and do not require reporting dollar-for-dollar by program—as some federal officials had insisted. Similarly, it clarifies that funds incorporated into a PL 477 may be comingled.
Fourth, it creates strict deadlines and processes for review and approval of PL 477 plans, as some federal officials have wrongly disapproved or delayed approval of eligible programs’ integration within PL 477 plans. It also clarifies the process for agencies to waive requirements of integrated programs.
The amendment also carries out other helpful changes to the PL 477 programs, which we’ll discuss.

3. Implementation of PL 477 Amendment Programs Eligible for Inclusion
Description
PL 477 Section
Characteristic 1: Agency
Programs that may be integrated are those operated by the Departments of the:
Interior;
Health and Human Services;
Education;
Labor;
Justice;
Agriculture;
Commerce;
Energy;
Homeland Security;
Housing and Urban Development;
Transportation; or
Veterans Affairs.
25 U.S.C. § 3404(b)
First, we’re going to talk about the types of programs that can now be included in a 477 plan.
When a tribe is trying to decide whether it can include a specific program in its 477 plan, it should ask whether the program has the three characteristics set out in amended 477.
First, it should ask whether the program is operated by one of the covered agencies.
Before the amendment, 477 covered Interior, HHS, Education, and Labor. Now it also covers Justice; Agriculture; Commerce; Energy; Homeland Security; Housing and Urban Development; Transportation; and Veterans Affairs—for a total of 12 agencies.

4. Implementation of PL 477 Amendment Programs Eligible for Inclusion
Description
PL 477 Section
Characteristic 2: Purpose
The program should be “implemented for the purpose of” any of the following:
“job training”;
“welfare to work and tribal work experience”;
“creating or enhancing employment opportunities”;
“skill development”;
“assisting Indian youth and adults to succeed in the workforce”;
“encouraging self-sufficiency”;
“familiarizing individual participants with the world of work”;
“facilitating the creation of job opportunities”;
“economic development”; or
“any services related to” the above listed activities.
25 U.S.C. § 3404(a)(1)(A)
Second, the tribe should ask whether the program is operated for a covered purpose.
The program should be “implemented for the purpose of” any of the purposes listed here, which are extremely broad but all relate in some way to employment or training.
[The previous version of 477 contained all but the first four of these purposes, although they were not separated out as clearly.]
[Note that the statute also has within its statement of purpose broad language that gives us additional insight on eligible programs’ permitted purposes. It says PL 477 is targeted at “employment, training and related services [tribes] provide from diverse Federal sources”. (25 U.S.C. § 3401).]

5. Implementation of PL 477 Amendment Programs Eligible for Inclusion
Description
PL 477 Section
Characteristic 3: Funding
The program’s funding should be granted on one of the following grounds:
an Indian tribe or members of Indian tribes are eligible to receive funds “under a statutory or administrative formula making funds available to an Indian tribe”;
an Indian tribe or members of Indian tribes are eligible to receive funds “based solely or in part on their status as Indians under Federal law”;
an Indian tribe or members of Indian tribes “have secured funds as a result of a noncompetitive process or a specific designation”; or
the program is funded by a block grant provided to an Indian tribe.
25 U.S.C. § 3404(a)(1)(B), (a)(2)
Third, the tribe should ask whether the money for the program comes from one of the covered types of funding.
Any one of the four types of funding listed here will qualify. Note that funding “based solely or in part on [the recipients’] status as Indians under Federal law” casts a wide net.
[Before the amendment, the statutory language only made clear that programs eligible were those with funds from a statutory or administrative formula.]
[If a tribe can show these three characteristics apply to a program, it should be able to defeat any argument that the program is ineligible for inclusion in a PL 477 plan.]

6. Implementation of PL 477 Amendment Process – Submission
Basic Steps
Implementation of PL 477 Amendment Process – Submission
Actor
Action
Timeframe
PL 477 Section
Submission of Program/Grant Request
Tribe or tribal organization
Apply to a particular agency to receive specific funding through a specific program.
Decision on Program/Grant Request
Other agencies overseeing programs identified in PL 477 plan
Decide whether to approve a tribe’s request for a program or grant funding.
Submission of PL 477 Plan
Submit a PL 477 plan to DOI that satisfies the specific statutory requirements that PL 477 lays out.
The specific statutory requirements include, among other things, that the PL 477 plan is “consistent with the purposes of” PL The submission should also identify programs to be integrated and waivers the tribe believes are necessary for implementation.
25 U.S.C. § 3405
Now I’ll describe the process for submitting, reviewing, approving, and implementing a 477 plan. We’ll go through the basic steps, the steps also applicable if a waiver is requested, and the steps applicable if a tribe challenges a decision.
I want to point out that these tables will show significant oversight and approval authority vested in DOI. I also want to point out that 477 now makes clear the limited statutory bases for disapproving a 477 plan or a waiver.
Alright, first up we have the submission process.
A tribe first goes through the process of getting its participation in particular programs approved from the specific agencies operating the programs. Only then can the tribe submit to DOI a 477 plan that requests to integrate these programs.

7. Implementation of PL 477 Amendment Process – Review
Actor
Action
Timeframe
PL 477 Section
Receipt of PL 477 Plan
DOI
Receive the submission from the tribe.
25 U.S.C. § 3406(a)
Consult
Other agencies overseeing programs identified in PL 477 plan
Tribe or tribal organization
Consult with DOI.
Waivers (if any)
See Separate Table on Waiver Process.
After that comes the federal review.
DOI receives the submission and then consults with the other agencies involved—meaning the agencies operating programs the tribe wants to incorporate into its 477 plan. DOI also consults with the tribe. They deal with requests to waive statutory or regulatory provisions otherwise applicable to the integrated programs at that point. We’ll come back to the waiver process in a bit.

8. Implementation of PL 477 Amendment Process – Approval
Actor
Action
Timeframe
PL 477 Section
Consideration and Decision
DOI
Approve or deny the PL 477 plan under its “exclusive authority.”
If the PL 477 plan is denied:
provide the tribe “a written notification of disapproval of the plan that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that the plan does not meet” the specific statutory requirements of a PL 477 plan submission; provide assistance to the tribe to overcome the stated objections; and provide notice of the right to appeal.
Not later than 90 days after receipt of the PL 477 plan. Otherwise the submission is considered approved.
However, DOI can extend this period for not more than 90 additional days with the tribe’s consent.
25 U.S.C. § 3407
Next is the approval process.
DOI has the exclusive authority to approve or deny a 477 plan. If it denies the plan, it has to provide the tribe the denial in writing. It also has to lay out a specific finding “that clearly demonstrates, or that is supported by a controlling legal authority, that the plan does not meet” the specific statutory requirements of a PL 477 plan submission. This is much like the standard for disapproval of a 638 submission. DOI has 90 days to act or the plan is considered approved.
If the plan is denied, the tribe has opportunities to challenge the denial, which we’ll talk about a little later.

9. Implementation of PL 477 Amendment Process – Implementation
Actor
Action
Timeframe
PL 477 Section
Implementation of Approved PL 477 Plan
DOI
Authorize the tribe to integrate the programs and funds and to coordinate the employment, training, and related services provided with those funds in a consolidated and comprehensive tribal PL 477 plan.
Note that certain job creation activities and employer training placements may be operated under a PL 477 plan.
25 U.S.C. § 3403
See also
25 U.S.C. § 3404(b)
 25 U.S.C. §§ 3408, 3409
Funding
Other agencies overseeing programs identified in PL 477 plan
Transfer funds appropriated for programs integrated into a PL 477 plan to DOI.
Transfer funds to tribes.
Not later than 30 days after the date of apportionment.
Not later than 45 days after receipt from the agency.
25 U.S.C. § 3412(a)
25 U.S.C. §§ 3410(a), 3412(b)
Administration
Review tribes’ annual reports and administer PL 477 plans.
25 U.S.C. §§ 3410, 3413
Once approved, DOI works with the tribe to implement the plan.
Under amended 477, agencies with programs that were integrated into a 477 plan have to give the funds for those programs to DOI within 30 days of their apportionment. Apportionment refers to when the Office of Management and Budget makes available to agencies funds for specific programs.
After that, DOI takes over on all aspects of implementation. It has 45 days to disburse the 477 plan funds to the tribes. It also takes care of reviewing annual reports and any other implementation actions required.

10. Implementation of PL 477 Amendment Process – Waiver
Actor
Action
Timeframe
PL 477 Section
Waiver Identification
DOI
Other agencies overseeing programs identified in PL 477 plan
Tribe or tribal organization
Identify and/or request the waivers of applicable statutory, regulatory, or administrative requirements, regulations, policies, or procedures necessary to enable efficient implementation of the PL 477 plan.
25 U.S.C. § 3406(b), (c)
Waiver Decision
Waive the identified statutory, regulatory, or administrative requirements, regulations, policies, or procedures unless the agency determines waiver is inconsistent with the purposes of PL 477 or “the provision of law from which the program included in the plan derives its authority that is specifically applicable to Indians.”
If the waiver request is denied, the agency must provide the tribe and DOI written notice of the denial and the reasons for the denial.
Not later than 90 days after receipt of the waiver request. Otherwise the request is considered granted.
For a denial, written notice must be provided not later than 30 days after the date of the denial.
25 U.S.C. § 3406(d), (e)
For tribes that want to incorporate programs into their 477 plans that require a waiver of otherwise impractical statutory, regulatory, or administrative requirements applicable to the program, they have to go through an additional step. After they submit their 477 plans to DOI for approval, they work with DOI and the affected agency on the necessary waiver.
The agency affected is directed to waive the requirement unless it determines waiver is inconsistent with the purposes of PL 477 or “the provision of law from which the program included in the plan derives its authority.” If it denies the waiver, it has to do so in writing. It has 90 days to act or the request is considered approved.

11. Implementation of PL 477 Amendment Process – Waiver
Actor
Action
Timeframe
PL 477 Section
Partial Approval of PL 477 Plan
DOI
Upon request of the tribe, grant partial approval of the portions of the PL 477 plan not affected by the waiver.
25 U.S.C. § 3407(b)
Review of Waiver Denial
Review the agency’s denial to determine whether granting the waiver would be inconsistent with the provision of PL 477 or would prevent the agency from fulfilling its obligations under PL 477.
Not later than 30 days after the waiver denial.
25 U.S.C. § 3406(f)
Establish Interagency Dispute Resolution for Waiver Denial
If DOI determines that waiver would not be inconsistent with the provision of PL 477 or prevent the agency from fulfilling its obligations under PL 477, establish an interagency dispute resolution process that includes DOI, the tribe, and the agency.
Not later than 30 days after it is determined waiver would not be inconsistent with the provision of PL 477 or prevent the agency from fulfilling its obligations under PL 477.
25 U.S.C. § 3406(g)
If the affected agency denies the waiver, DOI steps in to mediate. First, it reviews the denial. If it agrees with the affected agency, the waiver is denied.
If it does not, they all enter into an interagency dispute resolution process.

12. Implementation of PL 477 Amendment Process – Waiver
Actor
Action
Timeframe
PL 477 Section
Utilize Interagency Dispute Resolution
DOI
Other agencies overseeing programs identified in PL 477 plan
Tribe or tribal organization
Use the dispute resolution process to resolve the dispute.
The dispute must be resolved within 30 days of the process being initiated.
25 U.S.C. § 3406(g)
Final Decision on Waiver Denial
If the dispute resolution process fails, the agency has final authority to resolve the dispute.
25 U.S.C. § 3406(h)
Notice of Final Decision on Waiver Denial
Provide the tribe with the final decision on the waiver and notice of the right to appeal.
Not later than 10 days after the dispute is resolved.
25 U.S.C. § 3406(i)
Full Approval of PL 477 Plan
Upon request of the tribe, approve or amend the PL 477 plan after the waiver request has been resolved.
Not later than 90 days after receipt of the request.
25 U.S.C. § 3407(b)
After the dispute resolution process is final, if the parties still haven’t agreed, the affected agency gets to make the ultimate call about whether to waive the requirements.
However, it’s important to remember that a tribe can still receive approval of the part of its 477 plan not affected by the denied waiver.

13. Implementation of PL 477 Amendment Process – Appeal
Actor
Action
Timeframe
PL 477 Section
Hearing or Appeal
Tribe or tribal organization
Upon receipt of a disapproval of all or part of a PL 477 plan from DOI or receipt of a waiver denial from an agency overseeing a program identified in a PL 477 plan, request an administrative hearing or initiate a civil action.
25 U.S.C. § 3407(d)
Last up, we have the hearing or appeal phase. If a tribe receives disapproval of a waiver request or of its 477 plan, it has certain options to challenge the denial. It can request an administrative hearing, or it can bring an action in court.

14. Implementation of PL 477 Amendment Memorandum of Agreement
Agencies included in amended PL 477 have statutory deadline of one year from enactment to develop and enter into interdepartmental Memorandum of Agreement on implementation of new PL 477 legislation. MOA was completed in December 2018.
No tribal participation or consultation during drafting.
The agencies included in amended 477 have a statutory deadline of one year from enactment to develop and enter into an MOA on implementation of the new 477 legislation. This means the MOA must be completed by December 18, 2018.
The amendment legislation requires the Secretary of the Interior through the BIA Director to take the lead. DOI is currently heading up drafting efforts and has been coordinating with the 477 Tribal Workgroup.
The agencies will need to operate under the legal framework I have just laid out, which is provided for in the statutory text of amended 477.

15. Importance of PL 477
PL 477 program allows tribes to combine federal funds made available for employment, training, or related services from varied sources into one single plan with one single budget and reporting system.
Creates more flexibility for tribes in deciding how to spend these federal funds so they can design more successful programs based on unique needs of each tribe’s community members.
Allows tribes to streamline administrative processes, including program applications and federal reporting, thereby lowering administrative costs and making more funds available for direct services.
Provides room for more robust exercise of tribal sovereignty.
Concept could eventually expand beyond employment and training.
I want to wrap up by reiterating that the 477 program is hugely important, both for the flexibility it creates for tribes in their employment and training programs and also for the room it creates for them to more fully exercise their sovereignty through choosing how to use their finds.
The concepts behind PL 477 of increased flexibility and discretion, which build on the concepts of 638 contracting, could eventually expand beyond employment and training. So the employment and training folks are really on the cutting edge of what we hope becomes a larger trend.

16. Questions?
Steve Osborne