HR 329 - 4.14.15

Statement for the Record –
United States Department of the Interior

Before the

Subcommittee On Indian, Insular, and Alaska Native Affairs

House of Representatives

on

H.R. 329, Indian Employment, Training and

Related Services Consolidation Act of 2015

April 14,2015

Chairman Young, Ranking Member Ruiz and Members of the Subcommittee, thank you for the opportunity to submit this statement for the record from the Department of the Interior (Department) on H.R. 329, a bill to “amend the Indian Employment, Training and related Services Demonstration Act of 1992 to facilitate the ability of Indian tribes to integrate the employment, training, and related services from diverse Federal sources, and for other purposes.”

The Department has testified on similar legislation, most recently in April 2014 before the Senate Committee on Indian Affairs, and we appreciate that this legislation addresses many of the concerns the Department has expressed on past versions of this legislation. We also appreciate your commitment, Mr. Chairman, to sustaining and improving the Public Law 102-477 program (477 Program). The 477 Program has operated over the past 22 years as a demonstration project, and what the 477 Program has demonstrated is that when agencies collaborate to surmount bureaucratic obstacles, including by consolidating programs, and when they deliver badly-needed services on a one-stop basis, they can more promptly and efficiently remediate joblessness and social distress in Native communities. In sum, the demonstration has been successful.

Public Law 102-477 is a self-determination statute that allows tribes greater control over delivery of social welfare and workforce development services. It permits eligible federally-recognized tribes and Alaska Native organizations to consolidate into a single plan employment- and training-related, formula-funded federal grant monies from eleven different programs within our Department's Bureau of Indian Affairs and Bureau of Indian Education; the U.S. Department of Labor (DOL); and the U.S. Department of Health and Human Services (DHHS), such as the Native Employment Works Program (NEW), Tribal Temporary Assistance to Needy Families Program (TANF), and Child Care and Development Fund Program (CCDF). The 477 Program allows participating tribes to save administrative time and expense because they are no longer required to submit individual program plans and reports. This reduces bureaucracy and insures that more resources go to job placement and other services.

Public Law 102-477 designated the Department to be the lead agency to administer this program. The Department is proud, that in FY 2014, $90 million was disbursed to 477 Program tribal participants in the form of grants under the 477 Program. The Department generally supports H.R. 329 and would like to work with Chairman Young and the Subcommittee on a few provisions to improve the delivery of services to Public Law 102-477 grantees.

H.R. 329 establishes a dispute resolution mechanism to address agency denials of requests for waivers of “applicable statutory, regulatory, or administrative requirements, or of Federal agency policies or procedures necessary to enable the Indian tribe to efficiently implement” a Public Law 102-477 plan. These provisions give the agency from whom a waiver is sought 90 days to grant or deny the waiver and another 30 days to provide the affected tribe and our Department written notice of the denial and the reasons for the denial. If the agency from whom a waiver is sought fails to act within the bill's timelines, the waiver is deemed to be granted. The provisions also authorize our Department to review the denial on specified grounds and then, within 30 days, set up an interagency dispute resolution process including as participants our Department, the tribe seeking the waiver, and the agency from whom the waiver is sought. If this process fails to resolve the dispute, the head of the affected agency is accorded the final authority to resolve it.

We generally support the aim of this provision. These waivers can give tribes the flexibility needed to address urgent problems. We suggest some changes to make the provision more workable. First, 90 days may not be a sufficient amount of time for proper deliberation and collaboration among our federal partners to decide the merits of a tribal waiver request under H.R. 329. This bill appears to offer a workable approach to addressing waiver disputes, particularly since it reserves to the affected agency the ultimate decision with respect to whether a waiver is granted. Second, we suggest that the Waiver Authority under H.R. 329 be clarified. It currently indicates that “the head of each affected Federal agency shall waive any applicable statutory, regulatory, or administrative requirement, regulation, policy, or procedure promulgated by the agency that has been identified by the parties,” under subsection (b). While the waiver provisions in Sec. 8 of H.R. 329 identify review and discretion for the request for a waiver, the language identified in subsection (d) mandates the waiver of “any applicable statutory, regulatory, or administrative requirement, regulation, policy, or procedure promulgated by the agency that has been identified by the parties.” The Department recommends changing “shall” to “may,” to authorize discretion in the review and deliberation of requests for waivers under Sec. 8 of H.R. 329.

Third, the deemed approved provisions place the Department in the position of substituting our discretion for that of other Federal agencies. While our Department welcomes further streamlining of the plan approval process, the Department cannot support giving the Department control over other federal agencies' disposition of funds. What has made the Public Law 102-477 program successful is that it requires cooperation between agencies. This provision undermines that spirit of cooperation by allowing one Department to override the authority and legitimate concerns of co-equal Federal partners.

Finally, while we appreciate the bill's specification of the Department's role as lead agency under the 477 Program, we must oppose the provision contained in Section 11 that would require the Department to distribute funds to tribal grantees “not later than 45 days after the date of receipt of the funds from the appropriate Federal department or agency.” As a practical matter, there are steps that must be completed by tribes before the Department can distribute funds from other agencies.

The Department cannot disburse these funds until we obtain a signed grant amendment from the grantee's tribal chairman. This exchange can take time and is often dependent upon the tribal chairman's availability. Also, almost fifty percent of the 477 Program grantees operate under self-governance Annual Funding Agreements, which creates an additional step in the process of disbursing program funds since the BIA is required to prepare a Funding Document to transfer these funds to the Department's Office of Self-Governance.

It is important that the Department and our federal partners coordinate closely on the multi-step transfer processes that occur before funds are received by our agency. Further, it is important to quickly disburse program funds because the Department knows that, in many instances, such funds are life sustaining. Section 13 of H.R. 329 would require 477 Program federal partners to transfer funds to the Department “not later than 30 days after the date of apportionment.” The Department would like to discuss this section with the affected federal partners and whether this requirement would unreasonably burden them if H.R. 329 were enacted into law.

With respect to the bill's requirement that the Department establish a memorandum of understanding with other Federal agencies to set up an annual meeting of 477 Program tribal participants and federal partners and develop a single report format, we must point out that this kind of collegial and deliberative process is already occurring under authority of the Administrative Flexibility Working Group (AFWG) and the Department believes it is not necessary to require this of Federal agencies. The AFWG has met extensively and, among other achievements, has streamlined the 477 Program plan approval process and developed new reporting forms.