H.R. 329 — what changed

Section 4 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3403), as amended by section 2 of this Act, is amended to read as follows:

“4. Integration of services authorized

“The Secretary shall, after approving a plan submitted by an Indian tribe in accordance with section 8, authorize the Indian tribe to, in accordance with the plan—

changed “(1) integrate the programs and Federal funds received by the Indian tribe; tribe in accordance with waiver authority granted under section 7(d); and

“(2) coordinate the employment, training, and related services provided with those funds in a consolidated and comprehensive tribal plan.”

Section 5 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3404), as amended by section 2 of this Act, is amended to read as follows:

“5. Programs affected

“(a) Programs affected

“(1) In general—The programs that may be integrated pursuant to a plan approved under section 8 shall be only programs—

“(A) implemented for the purpose of—

“(i) job training;

“(ii) welfare to work and tribal work experience;

“(iii) creating or enhancing employment opportunities;

changed “(iv) higher education;skill development;

changed “(v) skill development;assisting Indian youth and adults to succeed in the workforce;

changed “(vi) assisting Indian youth and adults to succeed in the workforce;encouraging self-sufficiency;

changed “(vii) encouraging self-sufficiency;familiarizing individual participants with the world of work;

changed “(viii) familiarizing individual participants with facilitating the world creation of work;job opportunities;

changed “(ix) facilitating the creation of job opportunities;economic development; or

changed “(x) economic development; orany services related to the activities described in clauses (i) through (x); and

removed “(xi) any services related to the activities described in clauses (i) through (x); and

“(B) under which an Indian tribe or members of an Indian tribe—

“(i) are eligible to receive funds—

“(I) under a statutory or administrative formula making funds available to an Indian tribe; or

“(II) due to their status as Indians under Federal law; or

“(ii) have secured funds as a result of a competitive process, a noncompetitive process, or a specific designation.

“(2) Treatment of block grant funds—For purposes of this section, programs funded by block grant funds provided to an Indian tribe, regardless of whether the block grant is for the benefit of the Indian tribe because of the status of the Indian tribe or the status of the beneficiaries the grant serves, shall be eligible to be integrated into the plan.

“(b) Program authorization—The Secretary shall, in cooperation with the Attorney General, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Education, the Secretary of Energy, the Secretary of Health and Human Services, the Secretary of Homeland Security, the Secretary of Housing and Urban Development, the Secretary of Labor, the Secretary of Transportation, and the Secretary of Veterans Affairs, after the Secretary approves a plan submitted by an Indian tribe or tribal organization under section 8, authorize the Indian tribe or tribal organization, as applicable, to coordinate, in accordance with the plan, federally funded employment, training, and related services programs and funding in a manner that integrates the programs and funding into a consolidated and comprehensive program.”

Section 6 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3405), as amended by section 2 of this Act, is amended to read as follows:

“6. Plan requirements

“A plan submitted to the Secretary for approval under this Act shall—

“(1) identify the programs to be integrated and consolidated;

“(2) be consistent with the purposes of this Act;

“(3) describe—

“(A) a comprehensive strategy identifying the full range of potential employment opportunities on and near the service area of the Indian tribe;

“(B) the education, training, and related services to be provided to assist Indians to access those employment opportunities;

“(C) the way in which services and program funds are to be integrated, consolidated, and delivered; and

changed “(D) the results expected, including the expected number of program participants in unsubsidized employment during the second quarter after exit from the program, from the plan;

“(4) identify the projected expenditures under the plan in a single budget covering all consolidated funds;

“(5) identify any agency of the Indian tribe to be involved in the delivery of the services integrated under the plan;

“(6) identify any statutory provisions, regulations, policies, or procedures that the Indian tribe believes need to be waived to implement the plan; and

“(7) be approved by the governing body of the Indian tribe.”

Section 8 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3407), as amended by section 2 of this Act, is amended to read as follows:

“8. Plan approval; secretarial authority; review of decision

“(a) In general—The Secretary shall have exclusive authority to approve or disapprove a plan submitted by an Indian tribe in accordance with section 6.

“(b) Approval process

changed “(1) In general—Not later than 90 days after the date on which the Secretary receives a plan, the Secretary shall shall, after coordinating with the Secretary of each Federal agency providing funds to be used to implement the plan, approve or deny the plan.

“(2) Approval—If the Secretary approves a plan under paragraph (1), the Secretary shall authorize the transfer of program funds identified in the plan in accordance with section 13.

“(3) Denial—If the Secretary denies the plan under paragraph (1), the Secretary shall provide to the Indian 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 requirements described in section 6.

“(4) Partial Approval

“(A) In general—If a plan is denied under paragraph (3) solely on the basis that a request for a waiver that is part of the plan has not been approved (or is subject to dispute resolution) under section 7, the Secretary shall, upon a request from the tribe, grant partial approval for those portions of the plan not affected by the request for a waiver.

“(B) Approval after resolution—With respect to a plan described in subparagraph (A), on resolution of the request for a waiver under section 7, the Secretary shall, on a request from the tribe, approve the plan or amended plan not later than 90 days after the date on which the Secretary receives the request.

“(5) Failure to Act—If the Secretary does not make a decision under paragraph (1) within 90 days of the date on which the Secretary receives the plan, the plan shall be considered to be approved.

“(c) Extension of time—Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period identified in subsection (b)(1) for not more than 90 additional days, if, before the expiration of the period, the Secretary obtains the express written consent of the Indian tribe.

“(d) Review of denial

“(1) Procedure upon refusal to approve plan—If the Secretary denies a plan under subsection (b)(3), the Secretary shall—

“(A) state any objections in writing to the Indian tribe;

“(B) provide assistance to the Indian tribe to overcome the stated objections; and

“(C) unless the Indian tribe brings a civil action under paragraph (2), provide the Indian tribe with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, under such rules and regulations as the Secretary may promulgate.

changed “(2) Civil actions; concurrent jurisdiction; reliefactions

changed “(A) In general—The district courts of the United States shall have original jurisdiction of a civil action or claim against the appropriate Secretary arising under this section and over any civil action or claim against the Secretary for money damages arising under contracts authorized by this section.

changed “(B) Administrative hearing and appeal not required—An Indian tribe may bring a civil action or claim under this paragraph without regard to whether the Indian tribe had a hearing or filed an appeal under paragraph (1).

changed “(C) Relief—In an action brought under this paragraph, the court may order appropriate relief, including—relief (including injunctive relief to reverse a denial of a plan under this section or to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this Act or regulations promulgated thereunder) against any action by an officer or employee of the United States or any agency thereof contrary to this Act or regulations promulgated thereunder.

changed “(i) money damages;“(3) Final agency action—Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (collectively referred to in this paragraph as the “Department”) that constitutes final agency action and that relates to an appeal within the Department that is conducted under paragraph (1)(C) shall be made—

changed “(ii) injunctive relief against any action “(A) by an officer or employee official of the United States or any agency thereof contrary to this Act or regulations promulgated thereunder (including immediate injunctive relief to reverse Department who holds a denial of position at a plan under this section higher organizational level within the Department than the level of the departmental agency (such as the Indian Health Service or to compel the Secretary to approve a plan); andBureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or

changed “(iii) a writ of mandamus to compel “(B) by an officer or employee of the United States, or any agency thereof, to perform a duty provided under this Act or regulations promulgated hereunder.administrative law judge.”

removed “(3) Burden of proof at hearing or appeal declining contract; final agency action

removed “(A) In general—With respect to any hearing or appeal conducted under paragraph (1)(C) or any civil action brought under paragraph (2), the Secretary shall have the burden of proving by clear and convincing evidence the validity of the grounds for denying approval of a plan (or portion thereof).

removed “(B) Agency action—Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (collectively referred to in this paragraph as the “Department”) that constitutes final agency action and that relates to an appeal within the Department that is conducted under paragraph (1)(C) shall be made—

removed “(i) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or

removed “(ii) by an administrative judge.

removed “(4) Application of laws to administrative appeals—Section 504 of title 5, United States Code, and section 2412 of title 28, United States Code, shall apply to any administrative appeals pending on or filed after October 5, 1988, by an Indian tribe regarding a plan under this Act.”

Section 11 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3410), as amended by section 2 of this Act, is amended to read as follows:

“11. Federal responsibilities

“(a) Lead agency

“(1) In general—Notwithstanding any other provision of law, the lead agency responsible for implementation of this Act shall be the Bureau of Indian Affairs.

“(2) Inclusions—The responsibilities of the Director of the Bureau of Indian Affairs in carrying out this Act shall include—

changed “(A) in coordination with the head of each Federal agency overseeing a program identified in the plan, the development of a single model report for each Indian tribe that has in place an approved plan under this Act to submit to the Director reports on any consolidated activities undertaken and joint expenditures made under the plan;

“(B) the provision, directly or through contract, of appropriate voluntary and technical assistance to participating Indian tribes;

“(C) the development and use of a single monitoring and oversight system for plans approved under this Act;

“(D)

“(i) the receipt of all funds covered by a plan approved under this Act; and

“(ii) the distribution of the funds to the respective Indian tribes by not later than 45 days after the date of receipt of the funds from the appropriate Federal department or agency; and

“(E)

“(i) the performance of activities described in section 7 relating to agency waivers; and

“(ii) the establishment of an interagency dispute resolution process.

“(3) Memorandum of agreement

“(A) In general—Not later than 1 year after the date of enactment of the Indian Employment, Training and Related Services Consolidation Act of 2016, the Secretary (acting through the Director of the Bureau of Indian Affairs), in conjunction with the Secretaries of Agriculture, Commerce, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Labor, Transportation, and Veterans Affairs and the Attorney General, shall enter into an interdepartmental memorandum of agreement providing for the implementation of this Act.

“(B) Inclusions—The memorandum of agreement under subparagraph (A) shall include provisions relating to—

“(i) an annual meeting of participating Indian tribes and Federal departments and agencies, to be co-chaired by—

“(I) a representative of the President; and

“(II) a representative of the participating Indian tribes;

changed “(ii) an annual review of the achievements under this Act Act, including the number and percentage of program participants in unsubsidized employment during the second quarter after exit from the program, and any statutory, regulatory, administrative, or policy obstacles that prevent participating Indian tribes from fully and efficiently carrying out the purposes of this Act; and

“(iii) a forum comprised of participating Indian tribes and Federal departments and agencies to identify and resolve interagency conflicts and conflicts between the Federal Government and Indian tribes in the administration of this Act.

“(b) Report format

“(1) In general—The lead agency shall develop and distribute to Indian tribes that have in place an approved plan under this Act a single report format, in accordance with the requirements of this Act.

“(2) Requirements—The lead agency shall ensure that the report format developed under paragraph (1), together with records maintained by each participating Indian tribe, contains information sufficient—

changed “(A) to determine whether the Indian tribe has complied with the requirements of the approved plan of the Indian tribe; andtribe;

changed “(B) to provide assurances to determine the head number and percentage of each applicable Federal department or agency that program participants in unsubsidized employment during the Indian tribe has complied with all directly applicable statutory and regulatory requirements not waived under section 7.second quarter after exit from the program; and

changed “(3) Limitation—The report format developed under paragraph (1) shall not require a participating Indian tribe “(C) to report on provide assurances to the expenditure head of funds (expressed by fund source each applicable Federal department or single agency code) transferred to that the Indian tribe under an approved plan has complied with all directly applicable statutory and regulatory requirements not waived under this Act.”section 7.

added “(3) Limitation—The report format developed under paragraph (1) shall not require a participating Indian tribe to report on the expenditure of funds expressed by fund source or single agency code transferred to the Indian tribe under an approved plan under this Act but instead shall require the Indian tribe to submit a single report on the expenditure of consolidated funds under such plan.”

Section 14 of the Indian Employment, Training and Related Services Act of 1992 (25 U.S.C. 3413), as amended by section 2 of this Act, is amended—

“14. Administration of funds

“(a) Requirements

“(1) In general

“(A) Consolidation and reallocation of funds—Notwithstanding any other provision of law, all amounts transferred to a tribe pursuant to an approved plan may be consolidated, reallocated, and rebudgeted as specified in the approved plan to best meet the employment, training, and related needs of the local community served by the Indian tribe.

“(B) Authorized use of funds—The amounts used to carry out a plan approved under this Act shall be administered in such manner as the Secretary determines to be appropriate to ensure the amounts are spent on activities authorized under the approved plan.

“(C) Effect—Nothing in this section interferes with the ability of the Secretary or the lead agency to use accounting procedures that conform to generally accepted accounting principles, auditing procedures, and safeguarding of funds that conform to chapter 75 of title 31, United States Code (commonly known as the “Single Audit Act of 1984”).

“(2) Separate records and audits not required—Notwithstanding any other provision of law (including regulations and circulars of any agency (including Office of Management and Budget Circular A–133)), an Indian tribe that has in place an approved plan under this Act shall not be required—

“(A) to maintain separate records that trace any service or activity conducted under the approved plan to the program for which the funds were initially authorized or transferred;

“(B) to allocate expenditures among such a program; or

“(C) to audit expenditures by the original source of the program.

“(b) Carryover

“(1) In general—Any funds transferred to an Indian tribe under this Act that are not obligated or expended prior to the beginning of the fiscal year after the fiscal year for which the funds were appropriated shall remain available for obligation or expenditure without fiscal year limitation, subject to the condition that the funds shall be obligated or expended in accordance with the approved plan of the Indian tribe.

“(2) No additional documentation—The Indian tribe shall not be required to provide any additional justification or documentation of the purposes of the approved plan as a condition of receiving or expending the funds.

“(c) Indirect costs—Notwithstanding any other provision of law, an Indian tribe shall be entitled to recover 100 percent of any indirect costs incurred by the Indian tribe as a result of the transfer of funds to the Indian tribe under this Act.”

“(1) In general—All administrative”

“(2) Treatment—The amount equal to the difference between the amount of the commingled funds and the actual administrative cost of the programs, as described in paragraph (1), shall be considered to be properly spent for Federal audit purposes if the amount is used to achieve the purposes of this Act.

changed “(e) Matching Funds—Notwithstanding any other provision of law, any funds transferred to an Indian tribe under this Act shall be treated as non-Federal funds for purposes of meeting matching requirements under any other Federal law.law, except those administered by the Department of Labor or the Department of Health and Human Services.

“(f) Claims—The following provisions of law shall apply to plans approved under this Act:

“(1) Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959).

“(2) Chapter 171 of title 28 (commonly known as the “Federal Tort Claims Act”).

“(g) Interest or other income

“(1) In general—An Indian tribe shall be entitled to retain interest earned on any funds transferred to the tribe under an approved plan and such interest shall not diminish the amount of funds the Indian tribe is authorized to receive under the plan in the year the interest is earned or in any subsequent fiscal year.

“(2) Prudent investment—Funds transferred under a plan shall be managed in accordance with the prudent investment standard.”