# Indian Reservation Roads Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A02-18801 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 7, 2002 - **Citation:** 67 FR 51328 ## Text DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 170 [Docket No. FHWA-2002-12229] RIN 1076-AE17 Indian Reservation Roads Program AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of proposed rulemaking. SUMMARY: This proposed rule would establish policies and procedures governing the Indian Reservation Roads (IRR) Program. It expands transportation activities available to tribes and tribal organizations and provides guidance to tribes and tribal organizations for planning, designing, constructing, and maintaining transportation facilities. BIA also proposes a Tribal Transportation Allocation Methodology that includes a Relative Need Distribution Factor for allocating IRR Program funds based on the relative needs of Indian tribes, and reservation or tribal communities, for transportation assistance; and the relative administrative capacities of, and challenges faced by, various Indian tribes, including the cost of road construction in each Bureau of Indian Affairs area, geographic isolation, and difficulty in maintaining all-weather access to employment, commerce, health, safety, and educational resources. DATES: Written comments are due on or before October 7, 2002. For dates of public information and education meetings, please see Supplementary Information. ADDRESSES: Mail or hand deliver written comments to the docket number appearing at the top of this document to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW, Washington, DC 20590-0001 or submit electronically at http://dms.dot.gov/submit . All comments should include the docket number appearing in the heading of this document. In addition, as part of the Department's ongoing effort to reduce paperwork burdens, the Department invites the general public to take this opportunity to comment to OMB on the information collections contained in this proposed rulemaking, as required by the Paperwork Reduction Act. Such comments should be sent to the following address: Attention—Desk Officer for the Interior Department, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 27th Street, NW., Washington, DC 20503. Please send a copy of these paperwork burdens comments to the Dockets Management Facility as noted above. All comments received will be available for examination and copying at the Dockets Management Facility between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard, or you may print the acknowledgement page that appears after submitting comments electronically. For locations of public information meetings see the Supplementary Information section. FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of Transportation, Bureau of Indian Affairs, 1849 C Street, NW., MS 4058 MIB, Washington, DC 20240, (202) 208-4359 between 8 a.m. to 5 p.m., EST, Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): http://dms.dot.gov . It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help. An electronic copy of this document may be downloaded using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at: http://www.archives.gov/federal_register and the Government Printing Office's web site at: http://www.access.gpo.gov/nara . I. Background What Information Does This Section Address? This section addresses: —Public information and education meetings the Department will hold during the comment period; —The Transportation Equity Act for the 21st Century (TEA-21), Public Law (Pub. L.) 105-178; —The IRR Program; —How the Secretary formed the TEA-21 Negotiated Rulemaking Committee (the Committee), who its members are, how the Committee operated, when the Committee met, and the Committee's process for developing the rule and the Tribal Transportation Allocation Methodology for distributing IRR Program funds; —How funding for the IRR Program is currently distributed under the existing relative need formula; and —Issues on which Federal and tribal negotiators were unable to agree. What Public Information Meetings Are Scheduled To Explain This Rule? We will hold a series of 12 public information and education meetings within the comment period for this notice of proposed rulemaking (NPRM) to explain the content of the NPRM, answer questions, and encourage written public comment. The meetings will be held at the locations listed below. Individuals wishing information, may contact the individual listed under the caption FOR FURTHER INFORMATION CONTACT . The purpose of the public information and education meetings is to present the proposed rule and the proposed funding methodology. They are not public hearings. The meetings will include brief presentations by members of the TEA-21 Negotiated Rulemaking Committee on the content of the NPRM and the Tribal Transportation Allocation Methodology, including the Relative Need Distribution Factor for distributing IRR Program funds, and a period for clarifying questions. Attendees wishing to express comments on the content of the proposed rule should direct those comments to the address listed under the caption ADDRESSES. The meeting sites and dates are: Location Dates Minneapolis, Minnesota September 25, 2002. Nashville, Tennessee September 27, 2002. Rapid City, South Dakota August 20, 2002. Billings, Montana August 22, 2002. Las Vegas, Nevada August 27, 2002. Sacramento, California August 29, 2002. Gallup, New Mexico September 4, 2002. Santa Fe, New Mexico September 6, 2002. Anchorage, Alaska September 10, 2002. Portland, Oregon September 12, 2002. Tulsa, Oklahoma September 17, 2002. Oklahoma City, Oklahoma September 19, 2002. How Will the Public Education and Information Meetings Be Conducted? Each meeting will be conducted by a facilitator with tribal Committee members presenting the proposed rule and the proposed funding methodology. There will be periods for questions and answers. Each meeting will be held from 8 a.m. to 5 p.m., local time. The agenda for the meetings is: Agenda for Information and Education Meetings (all times local) 8-8:30 a.m. Introduction (Meeting format) 8:30-8:45 a.m. Overview of the Negotiated Rulemaking Process 8:45-9:15 a.m. Explanation of NPRM—Preamble, Table of Contents, Parts 9:15-9:30 a.m. Break 9:30-12 noon Explanation and Clarification of Published Proposed Rule 12-1 p.m. Lunch Break 1-1:30 p.m. Overview of Tribal Transportation Allocation Methodology (TTAM) (funding) 1:30-3 p.m. Explanation and Clarification of TTAM (funding) 3-3:15 p.m. Break 3:15-5 p.m. (Continued) Explanation and Clarification of TTAM (funding) What Is the Transportation Equity Act for the 21st Century? The Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178, 112 Stat.107, signed into law in 1998, is a broad-based statute that authorizes and expands the use of Federal Highway Trust funds through fiscal year 2003. Several provisions of TEA-21 directly affect the Indian Reservation Roads (IRR) program. TEA-21: • Authorizes $1.6 billion for the IRR Program for fiscal years 1998-2003; • Provides for use of the Indian Self-Determination and Education Assistance Act (the ISDEAA), Public Law 93-638, as amended, by tribes to contract IRR projects; and • Establishes the Indian Reservation Roads Bridge Program (IRRBP), codified at 23 U.S.C. 202(d)(c). A minimum of $13 million of IRR funds is set aside for a nationwide priority program for improving deficient IRR bridges. On July 19, 1999, the Secretary of Transportation issued an interim final rule for the IRR bridge program, now found at 23 CFR 661. What Is the Indian Reservation Roads Program? The Indian Reservation Roads (IRR) Program is a program of eligible transportation projects authorized under 23 U.S.C. 204. The program is jointly administered by BIA and FHWA's Federal Lands Highway Core Business Unit. The duties and responsibilities of BIA and FHWA are described in a Memorandum of Agreement between the two agencies which can be found at the section on joint administration. The IRR Program was established on May 26, 1928, by Pub. L. 520, 25 U.S.C. 318(a). It authorized the Secretary of Agriculture (which had responsibility for Federal roads at that time) to cooperate with state highway agencies and the Department of the Interior to survey, construct, reconstruct, and maintain Indian reservation roads serving Indian lands. In 1982, under the Surface Transportation Assistance Act of 1982 (STAA), Pub. L. 97-424, Congress created the Federal Lands Highway Program (FLHP). This coordinated program addresses access needs to and within Indian and other Federal lands. The IRR Program is a funding category of this program. STAA expanded the IRR system to include tribally-owned public roads as well as state and county-owned roads. Each fiscal year FHWA determines the amount of funds available for construction. BIA works with tribal governments and tribal organizations to develop an annual priority program of construction projects which is submitted to FHWA for approval based on available funding. FHWA allocates funds to BIA which distributes them to IRR projects on or near Indian reservations according to the annual approved priority program of projects. BIA distributes funds using the relative need formula. This formula addresses the allocation of funds to reflect the cost to improve roads to an adequate standard, measure the relative importance of road usage, and measure the socio-economic needs to be served by new transportation facilities. What Is the Purpose of the IRR Program? The purpose of the IRR Program is to provide safe and adequate transportation and public road access to and within Indian reservations, Indian lands, and communities for Indians and Alaska Natives, visitors, recreational users, resource users, and others, while contributing to economic development, self-determination, and employment of Indians and Alaska Natives. As of October 2000, the IRR system consisted of approximately 25,700 miles of BIA and tribally-owned public roads and 25,600 miles of state, county, and local government public roads. How Do BIA and FHWA Jointly Administer Statutory Requirements for the IRR Program? The Federal-Aid Highway Act of 1944, Pub. L. 521, 58 Stat. 838, Section 10(c) required the Public Roads Administration to approve the location, type, and design of all IRR roads and bridges before any expenditures were made and generally supervise all such construction. In 1946, the predecessor agencies of BIA and FHWA (the Office of Indian Affairs and the Public Roads Administration, then in the Department of Commerce, respectively), entered into their first agreement to jointly administer statutory requirements for the IRR Program. Since that time, there have been other interagency agreements to carry out FHWA and BIA duties and responsibilities under 23 U.S.C. 208. In 1973, BIA and FHWA entered into an agreement for an “Indian Roads Needs Study”; FHWA was to assist BIA in identifying roads that were at that time, or that should have been, included, as BIA's responsibility. In 1974, BIA and FHWA entered into two separate agreements which set out the joint and individual statutory responsibilities of FHWA and BIA for constructing and improving Indian reservation roads and bridges. The intent of both agreements was to establish a Federal-aid Indian road system consisting of public Indian reservation roads and bridges for which no other Federal-aid funds were available. Both BIA and FHWA jointly designated those roads and, under 23 U.S.C. 208, FHWA was responsible for approving the location, type, and design of IRR and bridge projects and supervising construction of these projects. At that time, IRR projects were authorized under the Federal-Aid Highway Act and under 23 U.S.C. 208, but they were constructed with Department of the Interior appropriations. In 1979, BIA and FHWA entered into another agreement which explicitly recognized the role of individual tribes in defining overall transportation needs. This agreement provided that the Indian road system was to consist of: [t]hose Indian reservations roads and bridges which are important to overall public transportation needs of the reservations as recommended by the tribal governing body. These are public roads for which BIA has primary responsibility for maintenance and improvement. Roads included on the Indian Road System shall not be on any Federal-aid system for which financial aid is available under 23 U.S.C. 104. After STAA's enactment, BIA and FHWA entered into a new 1983 Memorandum of Agreement that set forth the respective duties and responsibilities of each agency for the IRR Program. Under the interagency agreement, BIA, working with each tribe, was to develop an annual priority program of construction projects and submit the annual priority program to FHWA for review, concurrence, and allocation of funds. This 1983 agreement also specifically referenced the Buy Indian Act of June 25, 1910, 36 Stat. 891 (see also 25 U.S.C. 13) in response to 23 U.S.C. 204(e) which provided an exemption, if in the public interest, to the competitive bidding requirements of Title 23 with respect to all funds appropriated for the construction and improvements of IRRs that the Secretary administers. The 1983 interagency agreement also recognized that, although FHWA's assistance and oversight would continue, both FHWA and BIA would be responsible for the implementation and success of the IRR Program. As a result of section 1028 of ISTEA, which provided for the Highway Bridge Replacement and Rehabilitation Program, BIA and FHWA amended their 1983 agreement to provide for their respective responsibilities for that program. Why Did the Secretary Enter Into Negotiated Rulemaking With Indian Tribal Governments? TEA-21, Section 1115(b), mandates that the Federal Government (with representatives from the Department of the Interior and the Department of Transportation) enter into negotiated rulemaking with tribal governments to develop IRR Program procedures and a funding formula to allocate IRR funds. This rule was negotiated under the provisions of 5 U.S.C. 561. What Is the Purpose of the TEA-21 Negotiated Rulemaking Committee? The purpose of the TEA-21 Negotiated Rulemaking Committee is to negotiate and develop proposed regulations for the IRR Program to implement the applicable portions of TEA-21 and to establish a funding formula for fiscal year 2000 and each subsequent year based on factors that reflect: • The relative needs of the Indian tribes, and reservations or tribal communities, for transportation assistance; and • The relative administrative capacities of, and challenges faced by, various Indian tribes, including the cost of road construction in each Bureau of Indian Affairs area, geographic isolation and difficulty in maintaining all-weather access to employment, commerce, health, safety, and educational resources. (TEA-21, Pub. L 105-178, Section 1115(b)). How Did the Secretary of the Interior Inform the Public About the TEA-21 Negotiated Rulemaking Process? The Secretary published a Federal Register “Notice of Public Meeting” on October 30, 1998 (63 FR 58413). The Secretary held a national informational meeting for tribal governments, tribal organizations, individual tribal members, and the public to share information about the regulatory negotiation process for the IRR Program under TEA-21 on November 16, 1998, in Albuquerque, New Mexico. On December 17, 1998, the Secretary published a Federal Register “Notice of Intent to Form a Negotiated Rulemaking Committee and Accept Applications for Membership” (63 FR 69580). On February 11, 1999, the Secretary published a Federal Register notice proposing the members of the TEA-21 Negotiated Rulemaking Committee (Committee)(64 FR 6825). The Committee's meeting schedule was published on the IRR web site at http://www.irr.bia.gov. BIA produced a periodical newsletter that was published on the web site and was mailed to all primary and alternate Committee representatives. In addition, there were periodic mailings to all tribal leaders of federally recognized tribes. All full Committee and work group meetings were open to the public and the Committee accepted oral and written comments at each meeting. The Committee met in different geographical areas of the United States so that Indian tribes and tribal organizations could participate in the meetings and provide their comments for the record. How Was the TEA-21 Negotiated Rulemaking Committee Formed? The Secretary was required by 23 U.S.C. 202, as amended by TEA-21, to develop regulations and establish a funding formula for allocating IRR funds among Indian tribes using a negotiated rulemaking process. Section 202 also required the Secretary to: • Apply the procedures of negotiated rulemaking under 5 U.S.C. 561 et seq. (the Negotiated Rulemaking Act of 1990), in a manner that reflects the unique government-to-government relationship between Indian tribes and the United States; and • Ensure that the membership of the Committee includes only representatives of the Federal Government (the Department of the Interior and the Department of Transportation) and of geographically diverse small, medium, and large tribes. In the Federal Register notice of December 17,1998 (63 FR 69580), the Secretary requested nominations for committee representatives from tribes in each of the 12 BIA regions. In addition, the Secretary invited other interested, qualified persons to apply. The Secretary encouraged tribes to nominate representatives and alternates who were members of geographically diverse direct service, self-determination, and self-governance tribes, as well as members of tribes who had varying levels and types of experience in transportation development and management. Each of the 12 BIA regions were also invited to nominate 2 representatives and 2 alternates to serve on the committee. After reviewing the nominations, the Secretary appointed 2 primary tribal representatives and 2 alternate tribal representatives from each of the 12 BIA regions. In addition, the Secretary added five additional primary tribal committee representatives from regions that were considered under-represented in order to meet the statutory requirements for adequate representation of small, medium, and large tribes. On February 11, 1999, the Secretary published a Federal Register “Notice of the Proposed Membership of the Negotiated Rulemaking Committee” under Section 1115 of TEA-21 (64 FR 6825). After the Secretary received and reviewed comments, the representatives named in the notice were appointed to the Committee. The Committee membership reflected balanced interests by including: (1) Members of geographically diverse small, medium, and large tribes; (2) members of tribes identified as direct service, self-governance, and self-determination; and (3) members of tribes with experience in many areas of transportation development and management ( e.g., jurisdictional issues, complexity of transportation systems, climatic concerns, environmental factors, geographic isolation, etc. ). The Secretary appointed 10 Federal representatives from the Bureau of Indian Affairs (BIA) (the Department of the Interior) and 3 Federal representatives from the Federal Highway Administration (FHWA) (the Department of Transportation). The Committee has a total of 42 primary representatives—29 primary tribal representatives and 13 primary Federal representatives. The Secretary also appointed two alternates for each of the primary tribal representatives. The Secretary appointed the BIA Regional Director from the Southwest Regional Office as the Designated Federal Official. How Does the Committee Operate? The Committee operates under a set of written rules called protocols that the Committee developed. In the protocols, the Committee agreed to procedures for conducting meetings, to dates and locations of meetings, and to operate based on consensus decision-making. Four tribal representatives and three Federal representatives, chosen by their respective caucuses, chaired the full Committee meetings. The Committee identified over 117 issues with over 422 questions and answers for consideration. The Committee established four work groups to address identified subject matter areas of the IRR Program. Each work group chose a tribal representative to chair the work group. The work groups considered matters that addressed: (1) Funding formula, (2) policy, (3) delivery of services, and (4) technical standards. Tribal and federal resource persons who were not Committee members also assisted the work groups. The four work groups reviewed and researched issues and, where appropriate, drafted regulations in question and answer form. Each work group made recommendations to the full Committee on whether and how each issue should be addressed in the proposed regulations. Each work group presented its draft questions and answers to the full Committee for approval. The tribal and federal caucuses separately reviewed all proposed questions and answers and each caucus commented to the other on all proposed questions and answers. The full Committee considered the caucuses' comments. If the questions and answers needed further negotiation or consideration, a small group of tribal and federal members met to discuss them and work toward agreement. The small groups then presented their recommendations to the respective caucuses which made their recommendations to the full Committee. When the full Committee agreed on the questions and answers, approval was by consensus. All consensus items which were made a part of the official record are contained in the Committee's Documents 1-15. Consensus items were distributed to all Committee members and posted on the IRR web site for TEA-21. When Did the TEA-21 Committee Meet? The TEA-21 Committee held its first meeting March 16-18, 1999, in Albuquerque, New Mexico. The Committee decided that it would meet in various locations across the country to allow tribal representatives and individuals to present comments to the Committee and participate in full Committee and work group discussions. Between March 1999 and the last meeting November 27-December 1, 2000, the full Committee met 23 times at the following locations: Albuquerque, New Mexico; Portland, Oregon; Washington, DC; Sacramento, California; Anchorage, Alaska; Tulsa, Oklahoma; Ft. Yates, North Dakota; Phoenix, Arizona; Green Bay, Wisconsin; Minneapolis, Minnesota; Denver, Colorado; and San Diego, California. The four committee work groups met separately during full Committee meetings and at different times and locations. How Will the TEA-21 Committee Handle Written Public Comments? The Committee will review and consider all comments received within the comment period for this rule. To the extent practicable, the Committee will consider comments received after the comment closing date. It will make recommendations on the comments to the Secretary for the final rule. How Is the IRR Program Funded? From the DOT appropriation, FHWA reserves up to 1.5 percent for its administration and oversight of the IRR Program. Together BIA and FHWA develop a plan for using the remaining funds. This plan includes program management funds for BIA (up to 6 percent is authorized in the annual DOI Appropriations Act). Up to 2 percent of IRR Program funds are set aside for transportation planning by tribal governments. What Is the Existing “Relative Need Formula” (RNF)? The existing relative need formula is a mathematical calculation based on factors reflecting the cost to improve eligible IRR's, vehicle miles traveled, and population of federally-recognized tribes. As provided for in the 1982 Surface Transportation Assistance Act (STAA), BIA developed and FHWA approved the RNF to provide an acceptable method to compute the relative needs of the various Indian reservations for the distribution of Highway Trust Funds among all federally recognized Indian tribes. What Is the History of the Existing Relative Need Formula? On January 6, 1983, the STAA provided Highway Trust Funds for road construction on Indian reservations. Section 126 of the STAA required the Secretary of Transportation to allocate Highway Trust Funds for improvement of Indian Reservation Roads (IRR) according to the relative needs of the various reservations. In 1983, BIA began a planning process to determine the relative need for roads on the various reservations and to develop transportation plans for Indian reservations. In 1988, BIA undertook a national relative need study. From January 1988 to May 1989, an independent Indian consulting firm conducted a study under the guidance of BIA. The result of the study was a proposed Relative Need Formula. This proposed Relative Need Formula was made available to all tribes for review and comment over a period of 2 years. A final review of the existing Relative Need Formula was conducted in 1992 and the Deputy Commissioner of Indian Affairs and the FHWA approved the existing relative need funding formula. In January 1993, BIA began implementing the RNF over a 4-year transition period. What Is the Definition of “Relative Need” With Respect to Indian Reservation Roads? “Relative Need” is a ranked series of road and bridge improvements (by estimated cost) required to bring the IRR system from its existing condition to an adequate safe standard. When applied to individual Indian reservations it is a ranked series of road improvements (by estimated cost) required to bring roads and bridges that are located within or provide access to an Indian reservation to an adequate safe standard. Does the Existing Relative Need Formula Need To Be Used To Compute Percentages of Highway Trust Funds for Allocation to Indian Tribes? The existing Relative Need Formula is used to compute percentages of Highway Trust Funds for allocation to Indian tribes because there is a legislative requirement as follows. “On October 1 of each fiscal year, the Secretary [of Transportation] shall allocate the sums authorized to be appropriated for such fiscal year for Indian Reservation Roads according to the relative need of the various reservations as jointly identified by the Secretary [of Transportation] and the Secretary of the Interior.” 23 U.S.C. § 202(e). What Does the Existing Relative Need Formula Look Like? The following is the final version of the existing Relative Need Formula: A = 0.5 × (CI ÷ Total CI) + 0.3 × (VMT ÷ Total VMT) + 0.20 × (POP ÷ Total POP) Where: A = Percent of Relative Need for an individual tribe CI = Total cost to improve for an individual tribe VMT = Total vehicle miles traveled for an individual tribe POP = Total population for an individual tribe Total CI = Total cost to improve for all tribes Total VMT = Total vehicle miles traveled for all tribes Total POP = Total population for all tribes 0.50, 0.30, 0.20 = Coefficients reflecting relative importance given to each formula factor Example: Tribe X has: CI = $51,583,000 Total CI = $4,820,399,000 VMT = 45,680 Total VMT = 7,929,653 POP = 4,637 Total POP = 1,183,967 A = 0.00535 + 0.00173 + 0.00078 A = 0.00786 or 0.786 percent If Construction Funds available for the fiscal year are $160,000,000 Then: Tribe X distribution would be: $160,000,000 × 0.00786 = $1,257,600 How Is the Cost To Improve (CI) Computed? The data needed to compute the CI is taken from road inventories performed by tribes under the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638) contracts and by BIA. The road inventory includes attributes on individual road standards commonly found on reservations. In addition to the inventory, BIA regions supply cost tables identifying estimated costs for constructing a mile of road, in terms of four key road construction estimating items added to each specified standard, including grade and drain, gravel construction, pavement construction and incidental construction. Several other inventory attributes are then used to approximate the existing condition of the road or section of road in terms of the four key road construction-estimating items. Utilizing the cost per mile estimate tables submitted by BIA Regions, the cost for improving an existing road, or section of road, from its existing condition to its identified adequate road standard is computed. Once all of the computations are made for all roads or road sections needing improvement within each reservation, all costs are added up. BIA then uses the results in the Relative Need Formula. How Is the VMT Acquired? The road inventory data base includes existing average daily traffic (ADT) and/or projected 20-year ADT for each road or section of road which is eligible and designated for improvement. The length of road, or section of road, is also included in the inventory data base. The vehicle miles traveled (VMT) for each road, or section of road, to be improved is then computed by multiplying the 20-year projected ADT by the length of road or section of road. The VMTs for each road or section of road are then added up and the totals used in the Relative Need Formula. How Is the Population Data Acquired? BIA currently acquires the population data for each reservation from the Indian Service Population and Labor Force Estimates published by the U.S. Department of the Interior, Bureau of Indian Affairs. What Is the Significance of the Coefficients 0.50, 0.30, and 0.20 That Are Used in the Current Relative Need Formula? The coefficients used in the formula reflect the relative importance given to each factor. The size of the coefficient is justified on the following grounds: • Cost to improve is the most important factor and is the primary basis for determining Relative Need. It is given the weight of 0.50 (50 percent). • Benefits received from a road improvement are generally measured in terms of usage or VMT. This factor is important, but not as significant as cost in determining need. It is given the weight of 0.30 (30 percent). • Population, in itself, is not an overwhelming indicator of the need for road improvements. It is given a weight of 0.20 (20 percent). Which Roads Are Included in the Cost To Improve Calculations? Existing or proposed roads in the BIA system which are considered to have a construction need by Indian tribes are included in the cost to improve calculations. Tribes must adhere to certain guidelines in the selection of those roads. The roads must: • Be on the Indian Reservation Road system; • Not belong to or be the responsibility of other governments (i.e., States or counties); • Be within or provide access to reservations, groups, villages and communities in which the majority of the residents are Indian; and • Be vital to the economic development of Indian tribes. These roads are also identified by construction need (CN) in the road inventory which is performed for each reservation. Currently only the roads with a construction need category of 1 and 4 are included in the cost to improve calculations. These are defined as follows: Construction Need 1 (CN1): Existing roads needing improvement. Construction Need 4 (CN4): Roads which do not currently exist and need to be constructed (proposed roads). What Is the Construction Need of Completed Road Improvements? Roads or sections of roads which have been improved to their acceptable standard(s) are classified in the road inventory as construction need of 3 (CN3) roads or construction need of 0 (CN0) roads. CN3 roads or sections of roads are roads for which no further improvements are planned. Roads or sections of roads which have been improved to their acceptable standard but future improvements are anticipated, should be classified as CN0 until further improvements are needed due to deterioration based on age or increased traffic volumes. While classified as CN3 or CN0, roads are not included in the cost to improve calculations. Why Is it Important To Have a Road Inventory That Is Accurate and Current? Much of the data needed to compute the cost to improve and the VMT comes from the road inventory. If the data from the inventory is not accurate and current the true Relative Need for each tribe cannot be computed accurately. The inventory should be updated anytime a road is improved or added to the inventory. The inventory should also be updated periodically because deterioration of roads may occur and the cost to improve to the acceptable standard then increases. This would also indicate the true Relative Need. What Is Being Done To Assure That the Data Used in the Relative Need Formula Is Uniform, Accurate, and Consistent? The nationwide road inventory system, including all reservations, is continuously updated. This inventory is used to determine the relative condition of the road system for each reservation. The data is also used to compute the relative “cost to improve” roads on each reservation to an adequate safe standard. The cost to improve data is used together with the road usage (VMT) and Indian Population data to determine the latest “Relative Need” of each reservation. The new inventory is updated when a road is improved, when a new road is added to the inventory or when a road deteriorates to the point when it needs to be improved. What Is the Proposed Method of Distributing IRR Program Construction Funds? The Tribal Caucus of the TEA-21 Negotiated Rulemaking Committee developed the Tribal Transportation Allocation Methodology (TTAM) as a consensus compromise. 1. TTAM distributes IRR Program construction funds as follows: • 2% Transportation Planning Funds. It continues to provide for 2% Transportation Planning Funds. TTAM introduces 2 new concepts: • IRR High Priority Project Program ­(IRRHPP). It creates a national funding pool for IRRHPP using 5% of IRR Program construction funds. This pool will be available on an application basis for tribal projects needed for emergencies or disasters, or for tribes whose funding allocation under the formula is insufficient to build their highest priority project. IRRHPP projects must be IRR eligible and may not exceed $1 million. If Congress increases appropriations for the IRR Program above the current level of $275 million, 12.5% of the increase, after takedowns, will be added to the IRRHPP funding pool; and • Population Adjustment Factor (PAF) allocation. If Congress increases appropriations for the IRR Program above the current level of $275 million, 12.5% of the increase, after takedowns, will be used for a new small minimum allocation, PAF, for all tribes based on population ranges. PAF addresses the relative administrative capacities of tribes by taking into account the fact that all tribes participating in the IRR program necessarily incur some costs. As a practical matter, any participating tribe must undertake activities such as inventory development, planning, inter-governmental coordination, and maintaining management systems. The PAF component ensures that all tribes have a small but meaningful amount of funds for these activities. By delaying the PAF until there are appropriations increases, the TTAM minimizes the negative impact on large tribes. 2. TTAM establishes a Relative Need Distribution Factor: • The Relative Need Distribution Factor. The remainder of IRR Program construction funds (after 2% for Transportation Planning and 5% for IRRHPP) will be allocated by the following formula: 50% Cost-to-Construct (CTC) + 30% Vehicle Miles Traveled (VMT) + 20% Population (POP). These are the same formula factors and the same percentage allocations as under the existing BIA Relative Need Formula, but some changes have been made in the definitions and data used for each. TTAM includes technical improvements in the way the Relative Need Distribution Factor data is collected, applied, and administered which will make it easier for all tribes to participate in the IRR Program. How Is Cost-to-Construct (CTC) Calculated in the Relative Need Distribution Factor? The largest component of the TTAM (50%) is CTC, a factor which measures the need for construction funds for tribally-identified projects and, thus, the relative need of tribes for transportation assistance. CTC in TTAM will be derived from an expanded inventory that will include all IRR-eligible transportation projects. TTAM provides guidelines for future improvements in the cost methodology for the Relative Need Distribution Factor. Until this revised method is completed, the Relative Need Distribution Factor uses the “Simplified Approach to Cost to Construct” in Appendix C to Subpart C. By expanding the inventory for funding purposes to include all IRR-eligible projects, the Relative Need Distribution Factor of TTAM will result in a more complete accounting of tribal transportation needs. It will also ensure that IRR Program funding is spent on projects that generate funding in the Relative Need Distribution Factor, and thereby remove completed projects from the funding system. In contrast, under the existing Relative Need Formula, cost to improve funding was generated only by BIA system routes, but could be expended on other IRR-eligible projects. How Is the Vehicle Miles Traveled (VMT) calculated in the Relative Need Distribution Factor? VMT (30%) is a factor measuring transportation facility usage and includes the need to maintain and improve the existing transportation infrastructure. The Relative Need Distribution Factor uses the same methodology for computing VMT as the existing relative need formula, except that it is computed from current Average Daily Traffic (ADT) counts rather than the projected 20-year ADT. How Is Population (POP) Calculated in the Relative Need Distribution Factor? POP (20%) is a factor that is one indicator of transportation needs. The data used for population will be the tribal service population taken from the BIA Labor Force Report, until such time as the Native American Housing Assistance and Self-Determination Act (“NAHASDA”) American Indian and Alaska Native service population data is adjusted to include 2000 Federal census data. At that time, the NAHASDA service population will be used. The NAHASDA service population is developed by the Department of Housing and Urban Development pursuant to the Native American Housing Assistance and Self-Determination Act. Why Did the Tribal Caucus Develop TTAM? The Tribal Caucus developed TTAM to reflect Congress's intent expressed in TEA-21 that the funding distribution method balance the interests of all tribes and enable all tribes to participate in the IRR Program. Other guiding principles the Tribal Caucus used to develop the TTAM were: • Avoiding major percentage reductions of funds from particular tribes; • Allowing tribes to identify their true transportation needs; • Correcting technical problems with the existing Relative Need Formula; and • Devising a system that is accurate, verifiable, and uniformly applied. The overall effect of the TTAM is to make it easier for small tribes to participate in the program, without making major reallocations of funds from larger tribes. Why Did the Tribal Caucus Change the Existing Relative Need Formula to the Relative Need Distribution Factor? The BIA's prior relative need formula was criticized by smaller and historically underserved tribes for allocating funds primarily from an inventory of roads BIA built in the past and still owns. By driving funding primarily from an inventory of BIA system roads, the existing RNF tended to direct funds to tribes according to their past participation in the program, leaving many tribes out. Further, tribes that generate a small share under the formula have had difficulty accessing any construction funds at all, since a road construction project typically costs more than a small tribe's entire allocation under the formula. On the other hand, many other tribes believe BIA's existing relative need formula serves their needs and requires only technical improvements to ensure that it is accurately and uniformly applied. How Is the IRR Inventory Used in the Relative Need Distribution Factor? The inventory used in the Relative Need Distribution Factor will be expanded to include tribally-owned public roads and other IRR-eligible transportation facilities identified by tribes to more accurately measure transportation assistance needs and to match the projects on which IRR Program funding is spent. Other improvements will be made in the way the formula components are calculated and applied. What Are Other Features of the New Relative Need Distribution Factor? • It bases the inventory used for funding purposes on the needs of tribes as identified through long-range transportation planning. • It allows the inclusion of all IRR-eligible facilities in the inventory, but gives greater weight to BIA and tribally-owned public facilities by limiting, for Relative Need Distribution Factor purposes, most other IRR-eligible facilities to the amount of local matching funds needed for the project. • It provides that construction cost data be derived from an average of local tribal costs, state cost data from the tribe's area, and national tribal cost averages . How Does the Relative Need Distribution Factor Meet the Needs of Small, Medium, and Large Tribes? The Relative Need Distribution Factor will broaden tribal participation in the IRR Program. By expanding the inventory to include all IRR-eligible projects, the Relative Need Distribution Factor will benefit all tribes by allowing all of their actual IRR transportation needs to be counted for funding purposes. The Relative Need Distribution Factor improves the accuracy and uniformity of the data by using state and national average construction cost data in addition to self-reported costs. Various other improvements are made in the management and processing of the data. How Does the Relative Need Distribution Factor Comply With Congressional Intent? TEA-21, at 23 U.S.C. 202(d)(2)(D), required that the funding distribution method be based on factors that reflect: • The relative needs of the Indian tribes, and reservation or tribal communities, for transportation assistance; and • The relative administrative capacities of, and challenges faced by, various Indian tribes, including the cost of road construction in each Bureau of Indian Affairs area, geographic isolation and difficulty in maintaining all-weather access to employment, commerce, health, safety, and educational resources. Relative Need of Indian Tribes for Transportation Assistance. The Relative Need Distribution Factor and inventory system address the relative need of all tribes for transportation assistance by setting up a tribally-driven process for developing and maintaining the inventory data from which funding is calculated. It provides for a full accounting of tribal transportation needs. In the existing relative need formula cost to improve funding was generated only by BIA system routes, but all IRR roads designated as construction need 1 (CN1) and 4 (CN4) compute a need based on VMT. The Relative Need Distribution Factor continues the practice of the existing formula using Population and VMT factors to allocate funds based on road use and population. Relative Administrative Capacities of Indian Tribes. The Relative Need Distribution Factor recognizes that all tribes participating in the IRR Program necessarily incur some costs, such as the cost of planning, developing the inventory, and interacting with other government agencies. For this reason, 12.5% of future funding increases will be allocated by the Population Adjustment Factor so that all tribes receive at least some funding. The existing 2% Transportation Planning program is continued. Finally, the interim funding allocations used in FY 2000, 2001, and 2002 provided per tribe allocations to enable tribes to do administrative and planning work necessary to participate in the IRR Program. Cost of Road Construction. Tribal construction costs will continue to drive 50% of the funding allocation. Geographic Isolation. The difficulties caused by geographic isolation are addressed in the Cost-to-Construct factor of the Relative Need Distribution Factor because geographic isolation (location) is the biggest variable in determining construction costs. The Relative Need Distribution Factor uses an average of local tribal costs, local state costs, and national average tribal costs in applying the Construction Cost factor, and thus takes into account the geographic differences between the tribes. Difficulty in Maintaining All-Weather Access. This factor will be addressed by the tribes themselves as they add projects they believe are important to the inventory. It is also addressed in the ranking system for the new IRRHPP program, where projects that address these particular needs score higher. II. Summary of Regulations Subpart A—General Provisions and Definitions This subpart outlines the authority under which this rule is established. The purpose and scope of this rule is defined with respect to 23 U.S.C. 202(d) and 204 and the IRR Program. This subpart provides interpretation of the language used throughout 23 U.S.C. 202(d) and (204). The subpart further outlines the policies, guidance manuals, directives, and procedures that will govern the IRR Program under direct service, self-determination contracts, and self-governance agreements. It also includes definitions used throughout the rule. Subpart B—Indian Reservation Roads Program Policy and Eligibility This subpart: • Explains the Federal, tribal, state, and local governments' coordination, collaboration, and consultation responsibilities; and • How these efforts can effectively assist the tribal governments in meeting their transportation needs. • Lists activities eligible for IRR funding; and • Lists activities not eligible for IRR funding. • Discusses the use of all eligible Indian Reservations Roads; and • Other transportation facilities eligible for construction, including cultural access roads, housing access roads, toll roads, recreation, tourism, trails, airport access roads, transit facilities, and seasonal transportation routes authorized under 23 U.S.C. 204(j). • Covers the highway safety aspects of the IRR Program; and • Those activities, functions, and equipment that may be eligible for funding under this program; and • The formation of an IRR Coordinating Committee to make recommendations to help meet program objectives. • Local Technical Assistance Programs available to BIA and tribes performing activities under the IRR Program. This subpart also includes: • Transportation research activities; • Education and training opportunities available to tribes and BIA through Local Technical Assistance Programs and other federal, state, and local organizations; and • How IRR Program funds may be used for education and training. Subpart C—Indian Reservation Roads Program Funding This subpart covers the Tribal Transportation Allocation Methodology and includes a Relative Need Distribution Factor to distribute IRR Program funds. It includes: • Allocation of IRR Program Funds (overview); • 2% Transportation Planning Program; • Relative Need Distribution Factor for IRR Construction; • IRR High Priority Projects Program (IRRHPP); • Population Adjustment Factor (PAF); and • Relative Need Distribution Factor. It covers the following factors used in the Relative Need Distribution Factor: • Cost-to-Construct; • Vehicle Miles Traveled; and • Population. This subpart also includes: • General Data Appeals; • IRR Inventory; and • Long-Range Transportation Planning. Subpart D—Planning, Design, and Construction of Indian Reservation Roads Program Facilities This subpart discusses: • The transportation planning responsibilities and requirements consistent with 23 U.S.C. 134 and 135 and funding for transportation planning; • The requirements for developing a Transportation Improvement Program and long-range plans; and • The requirements for public hearings in the development of IRR TIPs. This subpart also: • Defines the IRR inventory and transportation classifications; • Discusses how the IRR Inventory is developed and used; • Discusses components of the IRR Inventory; • Includes the environmental and archaeological requirements that apply to projects under this program; • Covers whether IRR Program funds can be used for these requirements; • Outlines design, construction, and construction monitoring standards; • Includes procedures for road, bridge, and intermodal facilities; • Identifies the roles of and the responsible entities for such activities; • States the requirements for obtaining rights-of-way for construction of IRR facilities; • Covers annual and semi-annual program reviews required as a part of the overall management and oversight of the IRR Program; and • Discusses the processes and procedures used at the various office levels of the IRR Program to insure that the program is being carried under these regulations and the governing laws; • Outlines the management systems that BIA must develop and maintain under 23 U.S.C. 303 for oversight and management of the IRR Program. Subpart E—Service Delivery for Indian Reservation Roads This subpart tells how the ISDEAA can be used: • To contract for programs under the IRR Program; • In self-governance agreements; • In consortium contracts and agreements; • In multiple-year agreements; • For rights of first refusal; • In applicability of advance payments for ISDEAA contracts and agreements; • For contingency funds; and • For cost overruns. It also covers: • Indian preference versus local preference in contracting; • Contract enforcement; • Applicability of the Buy Indian Act and the Buy American Act to the IRR Program; • Applicability of the Federal Acquisition Regulations and Davis Bacon wage rates with respect to self-determination contracts or self-governance agreements; • Force account work; • Waivers of regulations; • The Federal Tort Claims Act; • Technical assistance available to tribes planning to contract for IRR Program eligible activities and/or functions; and • Savings Subpart F—Program Oversight and Accountability This subpart discusses: • Oversight roles and responsibilities for the IRR Program; • Memoranda of Understanding; • Professional licensing requirements; • Requirements for project approvals; and • Program accountability. Subpart G—BIA Road Maintenance This subpart covers: • BIA Transportation Facility Maintenance Program; • Eligible activities and facilities for maintenance including roads, bridges, airports, and other eligible facilities; • Maintenance funding; • Facility ownership; • Maintenance responsibilities to the traveling public; • Maintenance management system requirements; • Maintenance standards that apply to the maintenance program; • Mandated bridge inspection requirements and standards; and • Provisions for emergency maintenance. Subpart H—Miscellaneous This subpart provides information to tribal governments on the transport of hazardous and nuclear waste and covers: • Indian preference and tribal employment rights; • Applicability of tribal taxes and fees for IRR Projects; • Emergency relief for declared disasters on or near Indian reservations; • Funding availability for repairs of eligible facilities; • Tribal regulation of oversize and overweight vehicles; • Reporting requirements; • Welfare-to-work; • Tribal employment rights; • Establishing and operating tribal transportation departments and the eligible activities and/or functions for which these organizations can contract; • Alternative dispute resolution procedures to resolve IRR Program disputes; • Conflicts in law provisions; and • Research activities available under the IRR Program. III. Key Areas of Disagreement During the negotiated rulemaking the Committee addressed seven general subject matter areas: (1) General provisions, (2) IRR Program policy and eligibility, (3) IRR Program funding, (4) planning, (5) design and construction of IRR Program facilities, (6) IRR Program service delivery, and (7) maintenance and miscellaneous provisions. The Committee broke each area into questions and answers, the vast majority of which were agreed to by the Federal and tribal representatives. The tribal and Federal representatives did not reach a consensus on several issues. The disagreement items presented below by each side are not meant to be point-by-point rebuttals, rather, they are presentations of each side's views. The Federal and tribal suggestions on language (in question and answer format) for each area of disagreement are presented below, in order, by subpart and section, where appropriate. However, four areas of disagreement—advance funding, savings, contractibility, and availability of contract support funding—are outside the scope of this rulemaking. However, the Committee negotiated on these items and they are therefore presented together at the end of this section on disagreement items. In order to provide a complete proposed rule that could be commented upon, and pursuant to Administrative Procedure Act guidelines, the Federal text on the disagreement items is represented in the body of this proposed rule. Where Federal questions and answers are inserted into the rule, the section numbers are noted in the disagreement items below. A. General Issues The Tribal caucus and Federal caucus interpreted differently some statutory requirements about what TEA-21 requires BIA and FHWA to do and permits tribes to do, leading to disagreements on items such as availability of IRR Program funds under the Indian Self-Determination and Education Assistance Act, as amended (the ISDEAA). Tribal View As a general matter, the Tribal Caucus and Federal Caucus often disagreed over issues because they interpreted the statutory requirements of TEA-21 differently. For example, in the Tribal Caucus' view, TEA-21 plainly requires that all IRR Program funds be made available in accordance with the requirements of the Indian Self-Determination and Education Assistance Act, as amended (the ISDEAA), to Indian tribes that choose to administer IRR projects or the entire IRR Program. See 23 U.S.C. 202(d)(3). TEA-21 also provides that all funds made available under Title 23 U.S.C. for Indian reservation roads and bridges are subject to the ISDEAA mandates “[n]otwithstanding any other provision of law or any interagency agreement or program guideline, manual or policy directive.” Id. Many of the disagreement items which follow stem from disagreements about what TEA-21 requires BIA and FHWA to do and permits Indian tribes to do. To the extent that the IRR regulations differ in any respect from the provisions in the ISDEAA, the Tribal Caucus believes that the IRR regulations should serve to advance—rather than retard—the Federal Government's avowed policy of increasing tribal autonomy and discretion in the operation of this federal Indian program. See Executive Order 13084, Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2000) (mandating that executive agencies develop federal policies that “respect Indian tribal self-government and sovereignty” and that “grant Indian tribal governments the maximum discretion possible” with respect to Federal statutes and regulations. Federal View The Federal views below reflect the present Federal statutory and regulatory responsibilities of both DOI and DOT in their administration and oversight of the IRR Program. The Federal Caucus agrees that TEA-21 applies the ISDEAA to all IRR Program funds. However, TEA-21 does not, as the tribal view states above, require all IRR Program funds to be made available to tribes. Simply stated, the disagreement in statutory interpretation is over whether all IRR Program funds must be transferred to tribes or whether all IRR Program funds are subject to the ISDEAA. Section 1115(b) of TEA-21 provides: (A) In General.—Notwithstanding any other provision of law or any interagency agreement, program guideline, manual, or policy directive, all funds made available under this title * * * shall be made available, upon request of the Indian tribal government * * * in accordance with the Indian Self-Determination and Education Assistance Act * * *. (B) Exclusion of Agency Participation.—Funds for programs, functions, services, or activities, or portions thereof, including supportive administrative functions that are otherwise contractible to which subparagraph (A) applies, shall be paid in accordance with subparagraph (A) * * *. B. Eligibility—Subpart B The issue is whether BIA or FHWA makes the determination on a new proposed use of IRR Program funds. The Federal text is inserted at § 170.116. Tribal View The Tribal Caucus proposes the following regulatory provision to guide Indian tribes in determining whether a proposed use of IRR funds is allowable: How Can an Indian Tribe Determine Whether a New Proposed Use of IRR Funds Is Allowable? (a) An Indian tribe that proposes new uses of IRR funds may submit a written inquiry to BIA concerning whether the proposed use is eligible under Titles 23 and 25 of the United States Code, and other applicable provisions of federal law. The requesting Indian tribe must also provide a copy of its inquiry to FHWA. (b) BIA must provide the requesting Indian tribe, with a response in writing, within 45 days of receipt of the written inquiry. BIA must approve the proposed use unless it can identify a specific statutory prohibition to the proposed use related to transportation. To the extent practicable, BIA will consult with FHWA and the IRR Program Coordinating Committee in addressing the inquiry. (c) If BIA fails to issue a timely written response to the eligibility inquiry, the proposed use will be deemed to be allowable until guidance has been issued by the Coordinating Committee. (d) BIA will refer all eligibility decisions to the Coordinating Committee for consideration for guidance updates. (e) Denials of a proposed use may be appealed by the tribe under 25 CFR part 2. (f) Nothing in this section shall be interpreted as modifying or diminishing an Indian tribe's authority to redesign programs and reallocate funds under Public Law 93-638, as amended, and applicable regulations. When an Indian tribe assumes and performs IRR Program activities under either a self-determination contract or self-governance agreement, its ISDEAA agreement is an intergovernmental agreement and is with BIA, not FHWA. Under 23 U.S.C. 203, the Secretary of the Interior (and, thus, BIA) has express authorization to approve projects. This express statutory authority to approve projects independent of FHWA necessarily carries with it the ability to determine whether a proposed use of funds for a given project is permissible. General policy statements in 49 U.S.C. 101(b) about the need for the DOT does not preempt the specific grant of authority to the Interior Secretary contained in 23 U.S.C. 203. Therefore, the Tribal Caucus believes that tribal inquiries as to whether a proposed use of the IRR Program funding an Indian tribe administers under its ISDEAA agreement with BIA are appropriately directed to BIA and that BIA should be responsible for making the decision in a timely fashion. The Federal Caucus approach would require the Indian tribe to submit its request to both BIA and FHWA for decision. This could lead to a situation where the agencies might issue inconsistent decisions. The Tribal Caucus believes that the Federal Caucus approach creates more procedural requirements than are necessary, discounts the fact that BIA has statutory authority to independently approve projects, overlooks that these ISDEAA agreements are ‘government-to-government’ agreements between BIA and the tribe, and is inconsistent with the ISDEAA. Under the Tribal Caucus approach, the inquiry is submitted directly to BIA, with a copy to FHWA, and BIA is the agency responsible for issuing the decision. By making BIA responsible for issuing the decision, instances of inconsistent or contradictory results or decisions by BIA and FHWA are avoided. The Tribal Caucus approach also facilitates the ability of BIA to timely seek input from FHWA by requiring the Indian tribe to provide a copy of its request to FHWA directly. This approach will provide FHWA with the ability to provide BIA with input or guidance, if it so chooses. This approach also recognizes that BIA, as a party to the ISDEAA agreement, is the appropriate entity to respond to such tribal inquiries about the program assumed under such an intergovernmental agreement. With respect to the applicable standard, the Tribal Caucus believes that a proposed use of IRR Program funds should be allowable unless the use would violate Congressional statutory dictates. The Tribal Caucus believes that the approach suggested by the Federal Caucus—that a proposed use must be approved if it is listed in Title 23 of the United States Code as an eligible item—rings hollow because the full Committee already took steps to ensure that all eligible items listed in Title 23 are incorporated into the Eligibility listing found in these regulations. The Tribal Caucus believes its approach on this issue is more consistent with the ISDEAA. With respect to the amount of time for issuing a decision, the Tribal Caucus approach would limit the amount of time BIA has to issue a response to a maximum of 45 days because the building seasons tribes deal with are often extremely short, especially in Alaska and northern and mountainous regions of the United States. The 60 days the Federal Caucus prefers can effectively push tribal projects off until the following year. Finally, with respect to the impact on redesign and reallocation authority, the Tribal Caucus believes that language should be included to clarify that this provision does not amend such authority which is otherwise available under the ISDEAA. Indian tribes performing IRR Program activities under self-determination contracts and self-governance agreements have some authority to redesign the program and reallocate funding in accordance with 25 U.S.C. 450j(j), 450j-1(o), 458cc(b). The Tribal Caucus recognizes that there are some limitations on this general redesign authority for construction activities. However, not all IRR Program activities are construction activities. Furthermore, no provision federal law requires tribes to obtain the approval of FHWA in advance of reprogramming or reallocating IRR Program funds in a manner which is consistent with the ISDEAA. With this in mind, the Tribal Caucus feels it is imperative to expressly state that the regulatory provision addressing new uses of IRR Program funds does not modify or diminish tribal redesign and reallocation authority which is otherwise available under the ISDEAA. Absent such a qualifying statement, one could incorrectly infer that this regulatory provision modifies such tribal redesign and reallocation authority. Federal View New proposed uses of IRR Program funds must be submitted to FHWA for approval for several reasons. Title 23 U.S.C. 204(h)(7) authorizes the Secretary of Transportation to make eligibility determinations for the Federal Lands Highway Program on projects for all funding categories, including the IRR Program. Title 49 U.S.C. 101(b) directs DOT to ensure the coordination and effective administration of the transportation programs of the United States Government. Eligibility determinations and use of funds is a crucial component of the effective administration of transportation programs. The eligibility list and the method for submitting new items for eligibility consideration ensures a consistent approach to national IRR transportation issues. The Federal position regarding eligibility denials provides for an appeal process pursuant to 25 CFR part 2. The Federal proposal is as follows: How Can a Tribe Determine Whether a New Proposed Use of IRR Funds Is Allowable? (a) A tribe that proposes a new use of IRR program funds must submit a written inquiry to BIA and FHWA concerning whether the proposed use is eligible under Titles 23 and 25 of the United States Code and other applicable provisions of Federal law. (b) For eligibility questions that refer to self-determination and self-governance contracting and road maintenance, BIA must provide a written response to the requesting tribe within 60 days of receipt of the written inquiry. For eligibility questions that refer to IRR Program, FHWA must provide a written response to the requesting tribe within 60 days of receipt of the written inquiry. BIA must approve the proposed use if it is authorized under Title 25 and is related to transportation. FHWA must approve the proposed use if it listed as an eligible item in Title 23. To the extent practicable and before denying the request, BIA or FHWA consults with the IRR Program Coordinating Committee. (c) If either BIA or FHWA fails to issue the requesting tribe a timely written response to the eligibility inquiry, the proposed use will be deemed to be allowable until a determination has been made and the written response is provided to the tribe. (d) BIA and FHWA will send copies of all eligibility determinations to the IRR Program Coordinating Committee and BIA regional offices. (e) Tribes may appeal denials of a proposed use pursuant to 25 CFR part 2. C. Updating the IRR TIP—Subpart D The issue is how often the IRR TIP must be updated. The Federal text is inserted at § 170.420. Tribal View The Committee developed detailed planning regulations to better ensure the development of a comprehensive transportation program regardless of whether such program is administered by BIA, on behalf of Indian tribes, or is assumed by a tribe under the ISDEAA. Through better transportation planning, both tribes and BIA should maximize available resources. Only those transportation projects listed on the IRR TIP, however, are eligible for IRR construction funds. The Tribal Caucus therefore believes it is important: (1) That a specific time frame be set out in the IRR regulations governing the frequency with which BIA must update the IRR TIP, and (2) that a specific time frame be added by which BIA must actually complete the IRR TIP update once it has received a revised or amended tribal transportation improvement program (TTIP) or tribal priority list from an Indian tribe. The Tribal Caucus recommended that the proposed regulation provide that updates to the IRR TIP occur on a quarterly basis, or as otherwise needed, and further proposed that the updating process, once BIA received a tribal request to modify the IRR TIP, be completed by BIA within 45 days from the date of receipt, except under unusual circumstances. Quarterly updates would ensure that BIA's update of the IRR TIP would occur on a regular schedule and would not be overly burdensome since it would be similar to the schedule by which State TIPS are updated. As proposed by the Tribal version, allowances are made for unusual circumstances. Regardless of how frequently an IRR TIP is updated, the 45-day limit is reasonable and will better ensure that IRR TIPS are accurate. The Tribal Caucus recommends and requests public comment on the following regulatory provision to accomplish this goal: How Is the IRR TIP Updated? The updating process begins when BIA provides the projected IRR funding amounts to each tribe, or an analysis of the existing tribal priority list or TTIP. New transportation planning information or substantial changes to an IRR tribal project may require an IRR TIP update. BIA reviews the programming of proposed projects with the Indian tribal government and agreed upon adjustments are made to the IRR TIP on a quarterly basis or as otherwise needed. This updating process will, except under unusual circumstances, be completed within 45 days of receipt by BIA of the updated TTIP or tribal priority list submitted by the tribe. Federal View This issue involves the frequency of updating the IRR Transportation Improvement Program. Prior to Fiscal Year 2000, BIA submitted quarterly updated IRR TIPS to FHWA for review and approval. This quarterly procedure often resulted in untimely submissions of IRR TIPS to FHWA. This was a result of the overall TIP and Control Schedule process, which required involvement of BIA Regional offices, BIA Division of Transportation in Albuquerque, and BIA DOT in Washington, DC. In addition, many of the quarterly updated TIPS submitted did not contain any significant changes to the previously approved TIP ( i.e., addition or deletion of projects). Therefore, a time-consuming exercise was conducted to produce an “update” that really did not update the TIP. Also, updating TIPS quarterly for 12 BIA Regions imposes an additional approximately 70 per cent cost in processing IRR TIPS. Beginning in Fiscal Year 2000, FHWA requested that BIA submit TIP updates on an annual basis only, with updates submitted as required to reflect projects added to or deleted from the current TIP. Minor adjustments to funding between various projects, or within the activities (Preliminary Engineering, Construction Engineering, Construction) of a particular project, were determined to be insignificant and did not require the submittal of a TIP update. The Federal view is that for Fiscal Year 2002 and beyond, the IRR TIP submittal process described above be continued for the following reasons: (1) The IRR TIP development and submittal process is complex and lengthy. Performing four updates in one fiscal year may unnecessarily duplicate effort on the part of BIA and tribes, which could be performing other programmatic activities. (2) The annual IRR Program funding, once established for a Fiscal Year, does not vary significantly within that Fiscal Year for a particular region or tribe, some minor increases or decreases may occur. Therefore, substantial changes to a TIP would not be anticipated over the course of a Fiscal Year, and updates would not be necessary on a frequent basis. (3) Since public involvement process must occur before every TIP or TIP update/amendment is approved, fewer amendments would therefore decrease the necessity for multiple public involvement meetings for a single region's TIP, making the overall TIP approval process faster. (4) Limiting the amount of TIPS submitted in a given Fiscal Year forces the tribes and BIA regions to conduct better “up front” planning cooperatively to ensure all tribal priorities are being initially included in the TIP. While it is understood that leadership changes in a tribe may require mid-year changes to a TIP, these changes could be better coordinated to prompt only one amendment per year rather than the recommended three per year. The Federal view is that IRR TIPS only require updating as necessary not quarterly. The Federal proposal is as follows: How Is the IRR TIP Updated? The updating process begins when BIA provides the projected IRR Program funding amounts to each tribe, or an analysis of the existing tribal priority list or TTIP. New transportation planning information or substantial changes to an IRR tribal project may require an IRR TIP update. BIA reviews the programming of proposed projects with the tribes. Agreed upon adjustments are made to the IRR TIP following the IRR TIP process defined in this part on an annual basis or as otherwise needed. D. PS&E Approval Authority—Subpart D The tribal caucus and Federal caucus disagree on the issue of whether a tribe may assume the review and approve plans, specifications and estimates. The Federal text is inserted at §§ 170.480-481. Tribal View The Tribal Caucus position is that the review and approval of plans, specifications and estimate (PS&E) packages are activities that Indian tribes may assume under self-determination contracts or self-governance agreements. In fact, the Interior Department has already permitted tribal assumption under a self-governance agreement of the authority to review and approve PS&E packages in the IRR Self-Governance demonstration. Similarly, Indian tribes, as public authorities, may assume the authority to review and approve PS&E packages under a Stewardship Agreement. Moreover, it is the Tribal Caucus position that an ISDEAA agreement can either serve as a Stewardship Agreement or incorporate an existing Stewardship Agreement of the tribe, to enable the tribe to, among other things, review and approve PS&E packages. The Tribal Caucus acknowledges that all PS&E packages must be signed and/or sealed by a licensed professional engineer. However, it is the Tribal Caucus position that the extra-statutory “health and safety review” that the Federal Caucus insists on having simply is not required so long as the Indian tribe or tribal organization has provided assurances in the contract or agreement that the construction will meet or exceed proper health and safety standards, the licensed professional engineer approving the PS&E has certified that the plans and specifications meet or exceed the proper health and safety standards, and BIA receives a copy of this certification. See 25 U.S.C. 458cc(e)(2) (“In all construction projects performed pursuant to this part, the Secretary shall ensure that proper health and safety standards are provided for in the funding agreements. ”) (Emphasis added.) The Tribal Caucus approach is substantially the same as the clarification approach recently considered by the Senate Committee on Indian Affairs, which remarked: “[P]roviding tribes flexibility in meeting health and safety standards will not limit the ability of BIA or FHWA to ensure that the IRR roads and bridges are built safely and efficiently. BIA will retain its monitoring and final inspection authorities as currently permitted under law * * * Retaining a bureaucratic check on every detail of IRR planning and construction is unnecessary and creates redundancy and inefficiency.” Senate Report 106-406 at pp. 6-7 (Sept. 11, 2000). The Tribal Caucus strongly disagrees with the Federal Caucus' approach to this issue because it would place unnecessary and burdensome requirements on Indian tribes before they would be deemed eligible by FHWA to assume PS&E approval authority for IRR projects. As proposed by the Federal Caucus, only Indian tribes which meet ‘the requirements of a state as defined in 23 U.S.C. 302(a)’ of TEA-21 and enter into a tribal IRR Program stewardship agreement with DOT would be delegated PS&E review and approval authority for IRR projects. The Federal Caucus has not identified in its proposed regulation what FHWA requirements an Indian tribe would need to satisfy to demonstrate that it has ‘adequate powers’ and is ‘suitably equipped and organized to discharge to the satisfaction of the Secretary [of Transportation] the duties required by this title’ as set forth in 23 U.S.C. 302. Also, the Federal Caucus references 23 U.S.C. 106, 302 and 402 as giving FHWA authority to determine which public authorities, including tribes, are capable of approving PS&E packages, conducting project audits, project closeouts, inspections, and controls. However, sections 106 and 302 by their own terms only apply to state transportation departments, and do not apply to Indian tribes or the Federal Lands Highway Program. Also, section 402 addresses Highway Safety Programs only. The Federal Caucus' proposal would require that a tribe also negotiate a separate stewardship agreement with DOT, rather than permitting the tribe to assume such duties under its self-determination contract or self-governance agreement. It is unclear why stewardship provisions cannot be included in a self-determination contract or self-governance agreement, when such agreements can be used to explain the roles and responsibilities of the federal and tribal parties to the agreement. The Federal Caucus provision would further require that stewardship agreements include provisions for a health and safety review by the Secretary of the Interior and contain provisions and procedures by which the facility owner may review the PS&E. These provisions would place far too much discretion in the hands of FHWA, mandate agency oversight where such oversight may not be warranted, and increase the regulatory burden on tribes. The Tribal Caucus solution is to streamline the process as Congress intended. The Tribal Caucus proposes the following two regulatory provisions to clarify this issue: Can a Tribe Review and Approve PS&E Packages for IRR Projects? Yes. As a public authority, a tribe may assume review and approval authority of PS&E packages under a Stewardship Agreement pursuant to a Public Law 93-638 contract or self-governance agreement. The Public Law 93-638 contract or self-governance agreement may serve as the Stewardship Agreement. Alternatively, a tribe without a Stewardship Agreement may assume responsibility to review and approve PS&E packages under a self-determination contract or self-governance agreement so long as the Indian tribe or tribal organization has: (1) Provided assurances in the contract or agreement that the construction will meet or exceed proper health and safety standards; (2) obtained the advance review of the plans and specifications from a licensed professional engineer who has certified that the plans and specifications meet or exceed the proper health and safety standards; and (3) provided a copy of the certification to BIA. Must All PS&E Packages Be Approved? Yes. All PS&E packages must be signed and/or sealed by the appropriate licensed professional engineer, and by the appropriate official as follows: (a) Absent an approved Stewardship Agreement, FHWA approves all PS&E packages submitted by BIA; (b) Where an approved Stewardship Agreement exists between FHWA and the BIA Regional Office, PS&E packages are approved by an official in the BIA Regional Office; (c) Where an Indian tribe has assumed the responsibility to approve PS&E packages for IRR projects, in accordance with the question and answer above, the PS&E packages are approved by the tribe; (d) Where an Indian tribe has not assumed the responsibility to approve PS&E packages under paragraph (c) above, PS&E packages are approved under paragraph (a) or (b) above, as applicable. Federal View Under 23 U.S.C. 106, 302 and 402 certain activities can be delegated to public authorities which have adequate powers and are suitably equipped and organized to carry out, to the satisfaction of the Secretary, the duties of Title 23. These include Plans, Specifications, and Estimate (PS&E) approval, conducting project audits, project closeouts, inspections, materials testing, and quality control. Moreover, since Public Law 93-638 requires the Secretary to assure health and safety, the Secretary must still review the PS&E, even if PS&E approval has been delegated to the public authority. It follows that the facility owner/maintainer must concur with the proposed construction activities. Finally, inclusion of PS&E approval and other stewardship provisions in a recent pilot self-governance agreement has created a situation where changes to the stewardship provisions are requested on a yearly basis. While tribes can enter into a stewardship agreement with the Secretary of Transportation, such stewardship provisions cannot be included in a self-determination contract or self-governance agreement. The Federal proposal is as follows: Can a Tribe Review and Approve PS&E Packages for IRR Projects? Yes, a tribe can review and approve PS&E packages for IRR projects if the tribe meets the requirements of a state as defined in 23 U.S.C. 302 (a) and enters into a tribal IRR Program stewardship agreement with the Secretary of Transportation or designee. Who Must Approve all PS&E Packages? All PS&E packages must be signed and/or sealed by the appropriate licensed professional engineer and by the appropriate official as follows: (a) Absent an approved IRR Program stewardship agreement, FHWA approves all PS&E packages submitted by BIA; (b) When an approved BIA regional IRR Program stewardship agreement exists, PS&E packages are approved by an official in the BIA regional office; (c) When a tribe has assumed the responsibility to approve PS&E packages for tribal, state, and locally owned IRR facilities through a tribal IRR Program stewardship agreement, the tribe approves PS&E packages with the consent of the facility owner after a health and safety review by the Secretary; (d) When a tribe has not assumed the responsibility to approve PS&E packages under paragraph (c) above, BIA or FHWA approves PS&E packages under paragraph (a) or (b) above, as applicable. E. IRR Construction Project Reports—Subpart D The issue is how to regulate IRR construction project closeouts. The Federal text is inserted at §§ 170.485-489. Tribal View Detailed program oversight regulations have been developed by the Committee, with a number of provisions devoted to preparation of the IRR construction project close out report. The Federal and Tribal Caucuses did not reach consensus on a number of regulatory provisions governing the closeout of an IRR construction project. The Tribal and Federal Caucuses agreed to revise some regulatory provisions to substitute “IRR construction project report” in place of “IRR construction project audit” as the focus of the question and to delete regulations addressing an IRR project audit. It was the view of the Tribal Caucus that project audits were adequately addressed in existing Title I and Title IV regulations implementing the ISDEAA (See 25 CFR parts 900 and 1000). In some instances, the proposed regulations were corrected to reflect this intent. One regulatory provision, however, does not appear to have been modified as the Tribal Caucus believes should have been done. As a result, the proposed regulation contains a provision relating to an IRR construction project audit. The Tribal Caucus believes that the IRR regulations should only address IRR construction project closeout reports and omit any discussion of IRR project audits. Substitution of the phrase “construction project report” for the phrase “project audit” will accomplish this goal. Accordingly, the Tribal Caucus proposes the following regulatory provision and requests public comment: Who Has Final Acceptance of the IRR Construction Project Report? (a) With regard to IRR construction projects performed by BIA, the Secretary has final acceptance and approval of the IRR construction project report. (b) With regard to IRR construction projects performed by tribes under Public Law 93-638, the signatory authority has final acceptance and approval of the IRR construction project report. The Tribal Caucus differed with the Federal Caucus on the requirement that, as part of an IRR construction project closeout, the facility owner must accept the IRR project. It is the Tribal Caucus' view that closeout of an IRR construction project, which the regulations define as the final accounting of all IRR construction project expenditures and closing of the financial books of the Federal Government for the project, occurs once the final inspection has been completed and the IRR construction project has been accepted by the signatory authority for the project, which is the entity with final authority to sign the PS&E package. Therefore, the Tribal Caucus recommends and requests public comment on the following regulatory provision: When Does a Project Closeout Occur? A project closeout occurs after the final project inspection is concluded and the IRR project is accepted by the signatory authority (the entity with final authority to sign the PS&E package). It is the Tribal Caucus position that no regulation is required to identify the entity which must conduct the project closeout and prepare the IRR construction project closeout report. When an IRR construction project is performed by an Indian tribe under a self-determination contract or self-governance agreement, Title I and Title IV regulations implementing the ISDEAA adequately address the issue of who must conduct the project closeout and develop the IRR construction project closeout report. For example, 25 CFR 900.130(d) states: “Upon completion of the project, the Indian tribe or tribal organization shall provide to the Secretary a reproducible copy of the record plans and a contract closeout report.” The Tribal and Federal Caucuses agree on this point. The Tribal Caucus, however, does not believe that the Federal Caucus has appropriately described the circumstances under which BIA performs the IRR construction project on behalf of a tribe. The Federal Caucus supports regulatory text which states that: “When the activity and/or project is conducted using BIA force account, [the] Regional Engineer or designee is responsible for closing out the project and preparing the report.” BIA force account is only one of several methods available to BIA when it performs the IRR construction projects on behalf of tribes. As a result, it is the Tribal Caucus' position that no IRR regulatory provision is preferable to the incomplete provision proposed by the Federal Caucus. The Tribal Caucus believes that the Title I Self-Determination regulations (25 CFR part 900) and Title IV Self-Governance regulations (25 CFR part 1000) adequately cover the project closeout reporting obligations of Indian tribes performing IRR activities under the ISDEAA. While it is appropriate for these proposed IRR regulations to identify the content of the project closeout report when BIA administers the IRR Program for a particular tribe, the regulations should leave the content of the IRR construction project closeout report to the negotiations between BIA and a tribe when a tribe assumes the obligation to prepare the closeout report under an ISDEAA agreement. The Tribal Caucus disagrees with the Federal Caucus' proposed regulation which mandates that “all project information must be made accessible for the IRR construction project closeout” when a project closeout and preparation of the closeout report is undertaken by a tribe under a self-determination contract or self-governance agreement. It is the Tribal Caucus position that the proposed regulation be limited to BIA's preparation of the closeout report and leave the scope of project information to be made accessible for the IRR construction project closeout, when a tribe assumes such duties under the authorities of the ISDEAA, to the negotiation of BIA and the tribe. The Tribal Caucus therefore requests public comment on the following recommended regulatory provision: What Information Is Made Available for the Project Closeout? If the project closeout and development of project closeout report is not contracted or compacted then all project information must be made accessible for the IRR construction project closeout. Such information may include, but is not limited to: Daily diaries, weekly progress reports, sub-contracts, subcontract expenditures, salaries, equipment expenditures, etc. The Tribal Caucus believes that it is not necessary to identify in these regulations the entities which must receive a copy of the IRR construction project closeout report. As drafted, however, the proposed regulation is incomplete as it only addresses the entities to receive the closeout report for IRR construction projects when such projects are assumed under a self-determination contract or self-governance agreement. The proposed regulation fails to address the obligation of BIA to provide the closeout report to the Indian tribal government served by the construction project and to appropriate BIA officials, such as BIA Regional Engineer, BIA Agency Superintendent or Field Officer. The proposed regulation would read as follows: Who Is Provided a Copy of the IRR Construction Project Closeout Report? Projects negotiated under Public Law 93-638, as amended, shall specify who will be provided a copy of the closeout report. Unless the proposed regulation is corrected in the final regulation to identify the recipients of the IRR construction project closeout report, regardless of which entity prepares the report, the Tribal Caucus position is to delete the provision entirely. Federal View The issue appears to be whether these regulations need to address project closeouts and audit. 25 CFR 900.131(b)(10) states that “The Secretary retains the right to conduct final projects inspections jointly with the Indian tribe or tribal organization and to accept the building or facility.” A similar provision for self-governance tribes is provided in 25 CFR 1000.249(e). While 25 CFR 900.130(d) does contain project closeout requirements for self-determination contracts there is no similar provision for self-governance tribes in 25 CFR part 1000. The Federal proposal is as follows: Who Has Final Acceptance of the IRR Project Audit? The Secretary has final acceptance and approval of the project including the IRR project audit. When Does a Project Closeout Occur? A project closeout occurs after the final project inspection is concluded and the IRR project is accepted by the facility owner and the Secretary. Who Must Conduct the Project Closeout and Develop the Report? (a) The self-determination contract or self-governance agreement must specify who is responsible for project closeout and development of a final report. (b) The Secretary is responsible for closing out the project and preparing the report when the project is conducted by the Secretary. What Information Must Be Made Available for the Project Closeout? (a) When the Secretary conducts the project, all project information must be made accessible for the IRR construction project closeout. Such information may include, but is not limited to: Daily diaries, weekly progress reports, subcontracts, subcontract expenditures, salaries, equipment expenditures, etc. (b) When a tribe conducts the project under a self-determination contract or self-governance agreement, all project information must be made accessible for the IRR construction project closeout. Such information may include but is not limited to: Daily diaries, weekly progress reports, subcontracts, subcontract expenditures, salaries, equipment expenditures, etc. Who Is Provided a Copy of the IRR Construction Project Closeout Report? (a) When the Secretary conducts the project, copies of the IRR construction project closeout reports are provided to the affected tribes and the Secretary of Transportation. (b) When a tribe conducts the project under a self-determination contract or self-governance agreement, the contract or agreement must specify who will be provided a copy of the closeout report. F. Content of Rights-of-Way Documents—Subpart D The issue is on use of 25 CFR 169 in these regulations for IRR's as authority for rights-of-way over Indian Lands. The Federal text is inserted at §§ 170.501-502. Tribal View The Tribal Caucus is in general agreement with the Federal Caucus on the minimum content of a right-of-way document. The Tribal Caucus, however, disagrees that the status of the land dictates the content of the right-of-way document and strongly disagrees with the Federal Caucus' reliance upon and reference to 25 CFR 169 (Rights-of-Way Over Indian Lands) in these proposed regulations without appropriate qualifications. This is especially so in cases where it is the Indian tribe itself which seeks to construct a road across its own trust or restricted fee lands. Part 169 primarily sets out procedures by which third parties, such as railroads, utilities, and state or local governments, obtain rights-of-ways over reservation lands. Many of the requirements of part 169 are not applicable to Indian tribes securing rights-of-way for roads on their own reservations. For example, 25 CFR 169.4 requires that an applicant for a right-of-way apply for permission to survey the land, and in connection with the application, must demonstrate to BIA's satisfaction its good faith and financial responsibility. Part 169 also requires that applicants must also agree to indemnify the United States, the owners and occupants of the land against liability for loss of life, personal injury and property damage occurring because of survey activities caused by the applicant. 25 CFR 169.14 requires an applicant for a right-of-way to make a deposit to cover damages and consideration for acquiring right-of-way at the time of making the application. By cross-referencing 25 CFR part 169, the proposed regulations do not set out a clear response to the questions posed, but instead generate a series of questions about the extent to which part 169 should apply to the IRR Program. The Tribal Caucus recommends that the content of right-of-way documents be uniform and that no distinction be made in the right-of-way document regardless of whether the right-of-way sought is over trust, restricted fee, or fee simple lands. Another concern of the Tribal Caucus is that some tribes have federal statutory authority to grant rights-of-way across their reservations without Secretarial approval under part 169. See, e.g., 64 Stat. 442, as amended, 75 Stat. 499 § 2. The Tribal Caucus has proposed edits to a number of questions which acknowledge that some tribes have this authority, without otherwise altering the applicability of part 169 where part 169 is appropriate. The Tribal Caucus recommends that a provision be added to the regulation which makes clear that “nothing in this part is intended to supersede 25 CFR part 169 where part 169 is applicable to the right-of-way at issue.” The Tribal Caucus therefore requests public comment on the following regulatory provisions: What Must the Rights-of-way Easement Documents Contain at a Minimum? (a) All rights-of-way documents shall include the following: (1) Identification of the grantor and grantee; (2) Legal description of the property acquired for the right-of-way; (3) Right-of-way plat/map of definite location; (4) A statement of the term of the right-of-way, whether for a specific term of years, whether it includes a right of renewal, or whether the grant is in perpetuity; (5) Terms and conditions on the grant of the right-of-way, including but not limited to, other permissible uses of the right-of-way, or specific restrictions on the rights-of-way easements; (6) Identification of whether the rights-of-way includes the right to construct, and/or re-construct the facility; and (7) A statement on whether the right-of-way may be transferred or assigned, and the terms and conditions under which a transfer or assignment may occur. (b) Nothing in this part is intended to supersede the requirements of 25 CFR part 169 where part 169 is applicable to the right-of-way at issue. (c) A right-of-way document, if covering maintenance, may include an identification of maintenance responsibilities assumed by the grantee or retained by the grantor, and whether such rights convey with any transfer of the rights-of-way. It is the Tribal Caucus' view that procedures for acquiring rights-of-way over Indian trust lands and Indian lands subject to a restraint against alienation (restricted fee lands) should be the same, and separate regulatory provisions should address procedures to acquire right-of-way interests which traverse fee simple lands which are not subject of a federal restraint against alienation. The Tribal Caucus further believes that the party who must consent to the granting of a right-of-way will also depend upon the status of the land in question. In cases where an Indian tribe has granted a use right on its reservation to an individual Indian by virtue of a land use assignment, the Tribal Caucus believes that acquiring the individual Indian's interest for purposes of a right-of-way must be done in accordance with applicable tribal law and require the written consent of the tribe. The Tribal Caucus believes that this course of action is entirely consistent with applicable tribal law regarding such arrangements. The Tribal and Federal Caucuses also disagree on the applicability of part 169 to all rights-of-way over Indian allotted lands. It is the Tribal Caucus' view that other federal laws may apply and that the regulation should simply reflect that part 169 “or such other federal law” as may apply to the allotment at issue. As noted above, part 169 primarily addresses the procedures which third parties acquire right-of-way interests over Indian lands. If the regulations are to govern a tribe's administration of the IRR Program, the regulation must be drafted to accommodate both BIA and tribal administration of the program, and not be focused solely on BIA. The Tribal Caucus recommends and requests public comment on the following regulatory provisions: Who Grants a Right-of-way on Indian Trust or Restricted Fee Lands? The tribe must consent in writing to the granting of a right-of-way on any land title to which is held by the tribe or in which the tribe holds a beneficial interest. Where an individual Indian has an interest in tribal land by virtue of a land use assignment, acquisition of the individual Indian's interest for purposes of a right-of-way shall be done in accord with applicable tribal law, and require the written consent of the tribe. Where an individual Indian holds an allotment in trust or subject to a restraint against alienation, acquisition of a right-of-way over such allotment must be made in accordance with 25 CFR 169, or such other federal law as may apply to the allotment at issue. Federal View With respect to questions affecting rights-of-way over Indian lands, the existing regulations covered in 25 CFR 169 are adequate. It is the Federal view that any issues beyond the scope of the existing 25 CFR 169 are properly dealt with in a future revision of part 169 and are inappropriate for inclusion in this rule or for public comment. The Federal proposal is for two additional questions that reference 25 CFR 169 and reflect the minimum information an easement document must contain. They are as follows: What Must a Right-of-way Easement Document Contain at a Minimum? (a) For rights-of-way across Indian trust and restricted lands, those documents required by 25 CFR 169 must be submitted; and (b) For lands other than trust or restricted, the following information must be submitted: (1) Identification of the grantor and grantee; (2) A legal description of the property acquired for the right-of-way; (3) A right-of-way plat/map of definite location; (4) A statement of the term of the right-of-way, whether for a specific term of years, whether it includes a right of renewal, or whether the grant is in perpetuity; (5) Terms and conditions on the grant of the right-of-way, including but not limited to, other permissible uses of the right-of-way, or specific restrictions on the rights-of-way easements; (6) Identification of whether the rights-of-way includes the right to construct, and/or re-construct the facility; and (7) A statement on whether the right-of-way may be transferred or assigned and the terms and conditions under which a transfer or assignment may occur. (c) If a rights-of-way document covers maintenance it may include an identification of maintenance responsibilities assumed by the grantee or retained by the grantor and whether such rights convey with any transfer of the rights-of-way. How Are Rights-of-Way Granted on Indian Trust or Restricted Fee Lands? Grants of right-of-way must be made under the provisions of 25 CFR 169. G. Self-Governance Compacts—Subpart E This issue is whether under the ISDEAA tribes may assume only individual IRR projects or all IRR projects that are not inherently Federal functions. The Federal text is inserted at §§ 170.633-170.634. Tribal View The Federal Caucus approach appears to be that Indian tribes may only assume individual IRR projects. It is the Tribal Caucus' position that this approach is inconsistent with TEA-21 or Public Law 93-638, as amended, and limits the opportunity for tribes to administer entire IRR construction programs under a self-governance agreement. TEA-21 specifically includes language that accommodates the ability of an Indian tribe to assume under a self-governance agreement all IRR Program activities that are not inherently federal functions: (3) Contracts and Agreements with Indian tribes— (A) In General. —Notwithstanding any other provision of law or interagency agreement, program guideline, manual, or policy directive, all funds made available under this title for Indian reservation roads and for highway bridges located on Indian reservation roads to pay for the cost of programs, services, functions, and activities, or portions thereof, that are specifically or functionally related to the cost of planning, research, engineering, and construction of any highway, road, bridge, parkway, or transit facility that provides access to or is located within the reservation or community of an Indian tribe shall be made available, upon request of the Indian tribal government, to the Indian tribal government for contracts and agreements for such planning, research, engineering, and construction in accordance with the Indian Self-Determination and Education Assistance Act. (B) Exclusion of Agency Participation. —Funds for programs, services, functions, and activities, or portions thereof, including supportive administrative functions that are otherwise contractible to which subparagraph (A) applies, shall be paid in accordance with subparagraph (A) without regard to the organizational level at which the Department of the Interior that has previously carried out such programs, services, functions, or activities. 23 U.S.C. 202(d)(3). [Emphasis added.] The Tribal Caucus position is that these part 170 regulations should contain provisions that both recognize and appropriately accommodate the ability of Indian tribes to assume under a self-governance agreement all IRR Program activities that are not inherently federal functions. Federal View Section 1000.240 of 25 CFR specifies that the IRR construction program including projects and activities are subject to 25 CFR 1000, subpart K and that these regulations should reference subpart K. Sections 1000.87 and 1000.243 require that the agreement specify in writing the services, functions, and responsibilities to be assumed by the tribe/consortium and those retained by the Secretary. Since an FHWA-approved IRR TIP is the document approving the use of IRR Program funds for projects and activities, it is appropriate that each project, by activity performed by the tribe/consortium, be listed separately in the agreement in sufficient detail to adequately describe the work or through attachment of the IRR TIP and Control Schedule. The Federal proposal is as follows: What IRR Programs, Functions, Services, and Activities Are Subject to the Construction Regulations Set Forth in Subpart K of 25 CFR Part 1000? All IRR design and construction projects and activities, whether included separately or under a program in the agreement, are subject to the construction regulations set forth in subpart K of 25 CFR part 1000. How Are IRR Program Projects and Activities Included in the Self-governance Agreement? IRR Program projects and activities are included in the self-governance agreement as specific line items for each project or activity with sufficient detail to adequately describe the work as included in FHWA-approved IRR TIP and Control Schedule. Also, each agreement must include all other information required under 25 CFR 1000, subpart K. H. Content of Stewardship Agreements—Subpart F The issues are whether a tribe may enter into a Stewardship Agreement with FHWA directly and what a Stewardship Agreement must contain. The Federal text is inserted at §§ 170.701-170.705. Tribal View The Tribal Caucus agrees with the Federal Caucus that a Stewardship Agreement is an agreement between FHWA and the BIA Regional Office for assumption of FHWA's responsibilities for approval of Plans, Specifications & Estimates (PS&E). It was not the intent of the Tribal Caucus, however, that by agreeing to this definition, an Indian tribe would be precluded from entering into a Stewardship Agreement directly with FHWA and incorporate such agreement into its self-determination contract or self-governance agreement. Alternatively, a tribe without a Stewardship Agreement can assume authority to review and approve PS&E packages under a self-determination contract or self-governance agreement. There was no consensus on the mechanism by which an Indian tribe could assume PS&E approval when such authority had been delegated by FHWA to BIA. The Tribal Caucus recognizes the authority of Indian tribes to develop their own policies and procedures provided that such policies and procedures are consistent with applicable Federal requirements. The tribal recommendation is to revise the proposed regulation to simply list the content of the Stewardship Agreement without identifying whether a particular activity is performed by BIA or a tribe and to require that the work to be performed will comply with “applicable requirements” (Federal or tribal) rather than stating that the work must meet “prescribed policies and procedures of BIA and FHWA.” To achieve this result, the Tribal Caucus recommends revising the proposed regulation to read as follows: What Must Be Included in an IRR Program Stewardship Agreement? An IRR Program Stewardship Agreement must include: (a) Description of the planning, design, construction, and maintenance activities developed to ensure work meets applicable requirements; (b) Assumption of review and approval of PS&Es developed for Indian Reservation Road (IRR) construction projects and project monitoring; and (c) The standards which will be implemented in accordance with these regulations. Nothing in the Stewardship Agreement shall be construed to diminish or effect the rights, privileges and responsibilities of Indian tribes or tribal organizations to administer IRR programs under a self-determination contract or self-governance agreement, or to incorporate these IRR Program activities into such a contract or agreement. Federal View 23 U.S.C. 204(j) provides that projects selected by tribes from the TIP shall be subject to the approval of both the Secretary and the Secretary of Transportation. This includes approval of the plans, specifications, and estimates. 23 U.S.C. 106 allows the Secretary of Transportation to enter into agreements with public authorities that address assumption of some of the Secretary's responsibilities. 23 U.S.C. 302 requires public authorities that participate in the highway program have adequate powers and be suitably equipped and organized to carry out, to the satisfaction of the Secretary, the duties required in Title 23. Prior to TEA-21, this assumption was covered in 23 U.S.C. 117, certification acceptance. Certification acceptance agreements included: (1) Identification of which project approvals were delegated to BIA; (2) Identification of Federal requirements that had to be adhered to in BIA's administration of these project authorities and handling of exceptions; and, (3) BIA processes for providing the internal management of these authorities in lieu of Federal involvement. FHWA has developed policy on stewardship and program oversight instead of issuing regulations. Any such agreements must be consistent with this policy. Hence, all such agreements will require FHWA review and approval because they deal with FHWA responsibilities. The Federal proposal is as follows: What Is a IRR Program Stewardship Agreement? It is an agreement between FHWA and BIA Division of Transportation for assuming FHWA's responsibilities for planning, design, and construction within the IRR Program. What Is a BIA Regional IRR Program Stewardship Agreement? It is an agreement between FHWA, BIA Division of Transportation and a BIA regional office for assuming FHWA's responsibilities of the planning, design, and construction within the IRR Program. Can a Self-Determination Contract or Self-Governance Agreement Serve as an IRR Program Stewardship Agreement? No. A tribe must use a tribal IRR Program stewardship agreement. It is a separate agreement which details the tribe's assuming a portion of FHWA's and/or BIA's responsibilities for planning, design, and construction within the IRR Program. What Must Be Included in a BIA Regional or Tribal IRR Program Stewardship Agreement? At a minimum, these agreements must include: (a) BIA regional roads or tribal transportation department organization chart; (b) An IRR project development and construction flow chart; (c) Description of the transportation planning, design, procurement, project administration, and construction processes to be followed; (d) IRR design and construction standards to be used in accordance with this part; (e) List of roles and responsibilities to be assumed; (f) Provisions and process for obtaining the Secretary's health and safety reviews of the PS&E; and (g) Provisions and processes for obtaining the facility owner's review of the PS&E. What Is the Process for Obtaining the Facility Owner's Review of the PS&E? The process is as follows: (a) BIA region or tribe prepares and submits an IRR Program stewardship agreement to BIA Division of Transportation. BIA Division of Transportation forwards a copy to FHWA; (b) BIA and FHWA visit the tribe or BIA region and evaluate the capabilities to assume the proposed IRR Program responsibilities; (c) FHWA, in writing, advises the tribe or BIA region of any applicable changes to the proposed stewardship agreement; and (d) After all changes are made, the revised agreement is approved by FHWA or its designee. I. Arbitration Provisions—Subpart H The disagreement in this section is about what alternative dispute resolution methods are available to the Federal government and tribes and how alternative dispute resolution options may be used. The Federal question and answer is inserted at §§ 170.941 through 170.952. Tribal View The ADR approach chosen must be “appropriate” for the situation and must not derogate the principals and authorities of the ISDEAA and its implementing regulations, and recognizes that ADR may be appropriate and is authorized in the construction context under the ADR Act; 25 U.S.C. 450j(a)(3), 450j(m)(3)(E), 450l (model contract section (b)(12)), 450m-1(d), 458cc(e)(1), 458cc(l); 41 U.S.C. 605(d)-(e); 25 CFR 900.122(b)(5), 900.131(b)(11)(iv), 900.217; 25 CFR 1000.84, 1000.252, 1000.422, 1000.424; and 48 CFR 33.214. The Tribal Caucus would support clarification of this matter as follows: Are Alternative Dispute Resolution Procedures Available to Self-Determination and Self-Governance Tribes and the Secretary to Resolve Disputes Between Them in Performing IRR Public Law 93-638 Activities? Indian tribes and tribal organizations are entitled, at their option, to use the appropriate dispute resolution techniques or procedures set out in: (a) The ADR Act, 5 U.S.C. 571-583; (b) The Contract Disputes Act, 41 U.S.C. 601-613; and (c) The Indian Self-Determination and Education Assistance Act (including the mediation and alternative dispute resolution options listed in 25 U.S.C. 450l (model contract section (b)(12)) and the implementing regulations. Federal View This issue is about what alternative dispute resolution methods are available and how alternative dispute resolution options may be used. The Federal view allows arbitration as a different dispute resolution option as long as it does not conflict with existing regulations. The ADR Act requires the consent of both parties for any ADR technique to be used. In addition, it is the Federal Caucus' view that the Contract Disputes Act of 1978, 41 U.S.C. 601, as amended, Public Law 95-563, applies to Titles I and IV construction activities. The proposed regulation drafted by the Committee would improperly change those regulations. The Federal Caucus adds “for non-construction activities” to (c) to make clear that the model contract section is inapplicable to construction activities. The Federal Caucus' proposed question and answer is as follows: Are Alternative Dispute Resolution Procedures Available to Self-Determination and Self-Governance Tribes and the Secretary to Resolve Disputes Between Them in Performing IRR Public Law 93-638 Activities? Yes. Except as required in 25 CFR part 900 and part 1000, tribes and tribal organizations are entitled to use the appropriate dispute resolution techniques or procedures set out in: (a) The ADR Act, 5 U.S.C. 571-583; (b) The Contract Disputes Act, 41 U.S.C. 601-613; and (c) The Indian Self-Determination and Education Assistance Act (including the mediation and alternative dispute resolution options listed in 25 U.S.C. 450l (model contract section (b)(12)) and the implementing regulations for non-construction activities. The Department considers the following issues to be outside the scope of this rulemaking. However, because the Committee discussed these issues and attempted to come to consensus on them, they are presented to give a full picture of the Committee's deliberations. J. Advance Funding—Subpart E The issue is under what circumstances advance funding is available under self-determination contracts and self-governance agreements to tribes performing IRR construction and construction-engineering activities under these contracts and agreements. The Federal text is inserted at §§ 170.614-618. Tribal View The full Committee reached agreement regarding the advance payment of IRR funds to Indian tribal governments performing IRR non-construction activities under self-determination contracts and self-governance agreements. However, the Tribal Caucus and the Federal Caucus disagreed over the wording of proposed regulations for the advance payment of IRR funds to tribal governments performing IRR construction and construction-engineering activities under these contracts and agreements. In the Tribal Caucus' view, the Federal Caucus' proposed advance funding provisions would impose restrictions on the awarding of advance payments that are unnecessary as a matter of law and unwise as a matter of policy. For the reasons explained below, the Tribal Caucus proposes that the following two “advance funding” provisions also be adopted when the full Committee develops the final rule: May an Indian Tribe or Consortia Receive Advance Payment of IRR Funds Under a Self-Determination Contract for Construction Activities? Yes. BIA and the tribes must negotiate a schedule of advance payments as part of the terms of a self-determination contract that includes construction or constructing engineering activities. Tribes may receive advance payments of IRR funds in annual, semiannual or quarterly installments in accordance with 25 CFR 900.132. Indian tribes may not expend funds advanced under this section for construction and construction engineering on an IRR project prior to approval of a PS&E for the project. May an Indian Tribe or Consortia Receive Advance Payments of IRR Funds Under a Self-Governance Agreement? Yes. Advance payments must be made to an Indian tribe in annual or semi-annual installments at the discretion of the tribe. Advance payments shall be made to the tribe in the amount established by the IRR funding formula. Within 21 days after apportionment, BIA shall transfer all IRR funds advanced under this section to the Office of Self-Governance for prompt payment to the tribe or consortia. Indian tribes may not expend funds advanced under this section for IRR activities that are not included on an approved IRR TIP. At a minimum, the advance payment of IRR funds to Indian tribal governments must conform to the strict mandates of TEA-21 and the ISDEAA and its implementing regulations. Title I of the ISDEAA generally provides that “[u]pon the approval of the self-determination contract, the Secretary shall add to the contract the full amount of funds to which the contractor is entitled.” 25 U.S.C. 450j-1(f); see also 25 CFR 900.19. Title IV of the ISDEAA requires that self-governance compacts and annual funding agreements “shall provide for advance payments to the tribes in the form of annual or semiannual installments at the discretion of the tribes.” 25 U.S.C. 458cc(g)(2). However, the Title I self-determination regulations contain a special advance funding provision for construction contracts which requires that BIA provide advance funding to tribes performing construction contracts on at least a quarterly basis. See 25 CFR 900.132. In other words, quarterly advance payments are the minimum amounts authorized by law for self-determination construction contracts, but BIA and contracting tribes may negotiate an advance payment schedule on terms even more favorable to the tribes, based on the factors listed in the regulation. It makes sense to transfer scarce IRR funds into an Indian tribe's IRR Program account as soon as possible so that the money can begin drawing interest and the tribe can better manage IRR planning, design, construction, and maintenance activities. These IRR regulations should promote sensible economic practices and, wherever possible, maximize the benefits of scarce IRR funding for the Indian people the IRR Program is intended to serve. There are many statutory and accounting protections in place, up to and including the threat of criminal prosecution, which act to prevent tribes from misusing advance payments. Self-determination and self-governance tribes have been receiving lump sum advance payments for years to do everything from running hospitals to operating housing programs. There is nothing special or different about the IRR Program which suggests tribes cannot be trusted to behave appropriately when building or maintaining their IRR road systems. Throughout these negotiations, the Tribal Caucus has sought to clarify that BIA is authorized—and, in the case of self-governance agreements, required—to make advance payments of IRR funds to Indian tribal governments in annual, semiannual or quarterly installments, at the discretion of the tribe. Therefore, the Tribal Caucus believes that the IRR regulations should authorize, in clear and simple language, the advance payment of IRR funds to Indian tribes on the terms that the tribes themselves propose. These regulations should also clarify that advanced IRR funds must be paid to tribes as soon as possible after the start of the fiscal year. Federal View The Federal representatives are aware of the different payment provisions contained in Titles I, II, IV, V, and section 108 of the Indian Self-Determination and Education Assistance Act, as amended. Thus, how and when advance payments are made is based on which type of document (contract, grant, a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-18801. Public record. Not legal advice.