TTUALegislativelanguage4!25!2014edition (2)TRIBAL TRANSPORTATION PROVISIONS PROPOSED FOR INCLUSION...

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TRIBAL TRANSPORTATION PROVISIONS PROPOSED FOR INCLUSION IN THE

HIGHWAY REAUTHORIZATION LEGISLATION

BY THE

TRIBAL TRANSPORTATION UNITY CAUCUS

THE NATIONAL CONGRESS OF AMERICAN INDIANS

AND THE

INTERTRIBAL TRANSPORTATION ASSOCIATION

Ap r i l 25 , 2014

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TABLE OF CONTENTS

1. Increase Funding for Tribal Transportation Programs to Address Chronic Unmet Needs ......................................................................................... 5

(a) Increase Funding for the Tribal Transportation Program (TTP) to $800 million for FY 2015 with annual step increases of $50 million to $1.05

billion in FY 2020 .......................................................................................................................................................................................................... 5

(b) Establish Tribal Asset Management Program at $50 million in FY 2015 with annual $5 million step increases to $75 million in FY 2020 for BIA

and tribally owned transportation facilities ................................................................................................................................................................... 6

(c) Increase funding for the Tribal Transit Program .......................................................................................................................................................... 9

i. Discretionary funding increase to $10 million in FY 2015 with annual $5 million step increases to $35 million in FY 2020........................ 9

ii. Formula funding increase to $35 million for FY 2015 with annual $5 million step increases to $60 million in FY 2020 .............................. 9

iii. Ensure established tribal transit programs receive formula funding that is no less than the highest amount of operations funding received

since the creation of the Tribal Transit Program in FY 2005 ........................................................................................................................... 9

(d) Restore Highway Trust Fund allocation for the Tribal High Priority Projects Program ............................................................................................ 12

i. Increase funding to $35 million in FY 2015 with annual $5 million step increases to $60 million in FY 2020 ............................................ 12

ii. Increase maximum grant amount to $1.5 million when funding increases above $35 million ...................................................................... 12

(e) Redistribute 10% of unused obligation authority to the TTP to fund competitively awarded grants to more remotely located Tribal Nations ........ 13

(f) Separately fund the TTP Bridge Program at $75 million in FY 2015 with annual step increases of $5 million to $100 million in FY 2020 and

authorize the use of funds for the construction and design of new bridges ................................................................................................................ 14

(g) Establish $75,000 as the minimum annual TTP Program funding allocation for all Tribes ....................................................................................... 16

(h) Restore the TTP exemption from the Obligation Limitation deduction ..................................................................................................................... 17

(i) Reduce BIA and FHWA program management and project-related administrative expenses from 6% to 5% with an annual cap of $28 million ... 18

2. Decrease the high rate of fatalities and injuries on Tribal Transportation Systems .................................................................................................. 19

(a) Supplement the 2% set aside for highway safety projects within the Tribal Transportation Program authorization with additional Highway Safety

Improvement Program funds from the Highway Safety Improvement Program ........................................................................................................ 19

(b) Increase set-aside of NHTSA Tribal Safety Program to 3.5% to address safety issues on Tribal transportation systems ......................................... 19

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TABLE OF CONTENTS CONTINUED

3. Create a Tribal Self-Governance Program under the U.S. Department of Transportation ...................................................................................... 22

4. Ease the transfer of Federal Aid funds for Tribal Transportation Projects ............................................................................................................... 37

5. Ensure Tribal eligibility for all U.S. Transportation Department discretionary and competitive grants ................................................................ 39

6. Improve BIA Right-of-Way Management ..................................................................................................................................................................... 40

7. Gives Tribes the Option of Assuming NEPA Approval Authority .............................................................................................................................. 46

8. Funding to Establish a Tribal Infrastructure Bank ...................................................................................................................................................... 47

9. Increased funding for Tribal Technical Assistance Program (TTAP) ......................................................................................................................... 53

10. Improve the speed and efficiency in getting Emergency Relief for Federally Owned Roads (ERFO) funding to Tribes ....................................... 54

11. Create a 3% Tribal funding set aside in Transportation Alternatives (TA) Program ............................................................................................... 55

12. Adequately Fund MAP-21 requirement that Federal and Tribally-owned bridges must now be inspected and included on the National Bridge

Inventory and require that the cost be borne by the Secretary of Transportation and not charged to the Tribal Transportation Program ....... 56

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This document sets out draft legislation to incorporate into the next surface transportation bill to improve transportation systems in Indian Country,

promote economic development and reduce traffic fatalities among Native Americans. The package of amendments implement proposals approved

by Tribal leaders in Denver Colorado on February 25 and 26, 2014, at a meeting organized by the Tribal Transportation Unity Caucus (TTUC) and

the Rocky Mountain Planners Association. TTUC is a broad coalition of diverse Indian tribes from across the country that have joined together to

advocate for a new highway bill that reflects the transportation challenges faced by Indian tribes. The proposed amendments have been endorsed by

the TTUC, the National Congress of American Indians (NCAI) and the Intertribal Transportation Association (ITA). If you have any questions

concerning the TTUC proposals, please contact the following individuals: Burny Tibbetts at [email protected], Gwen Salt at

[email protected], John Healy at [email protected], Matt Jaffe and Jim Glaze of Sonosky, Chambers, Sachse, Endreson & Perry, LLP

at [email protected] and [email protected], Michael Willis and Adam Bailey of Hobbs Straus Dean & Walker, LLP at

[email protected] and [email protected], and Julianne Baltar at Bristol Bay Native Association [email protected].

Explanation of the formatting of this document:

Column 1 reflects the proposed bill language. For ease of reference, for programs that already exist, section numbers in the proposed bill

correspond to section numbers used in the Moving Ahead for Progress in the Twenty-First Century (MAP-21) or with transportation legislation

codified at title 23, United States Code and chapter 53 of title 49, United States Code. Section number ―xx‖ is used for new programs or for

sections with no corresponding section in MAP-21 or the U.S. Code.

Column 2 of this document is a redlined version indicating the effect of the proposed bill language on MAP-21 or, as appropriate, on

transportation legislation codified at title 23, United States Code and chapter 53 of title 49, United States Code. Additions are underscored

and deletions are struck through. A rationale section follows each proposal setting out a short justification for the statutory change.

mailto:[email protected]







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1. Increase Funding For Tribal Transportation Programs to Address Chronic Unmet Needs. a) Increase Funding for the Tribal Transportation Program (TTP) to $800 million for FY 2015 with annual step

increases of $50 million to $1.05 billion in FY 2020;

Column 1

Proposed Legislation

Column 2

Current law with proposed legislation (Col. 1) reflected as

amendments

Section 1101(a)(3)(A) of Pub. L. 112-141, is amended to read:

Section 1101. AUTHORIZATION OF APPROPRIATIONS

(a) IN GENERAL. —The following sums are authorized to be

appropriated out of the Highway Trust Fund (other than the

Mass Transit Account):

*****

(3) FEDERAL LANDS AND TRIBAL TRANSPORTATION

PROGRAM.—

(A) TRIBAL TRANSPORTATION PROGRAM.—For the tribal

transportation program under section 202 of title 23,

United States Code—

(i) $800,000,000 for fiscal year 2015;

(ii) $850,000,000 for fiscal year 2016;

(iii) $900,000,000 for fiscal year 2017;

(iv) $950,000,000 for fiscal year 2018;

(v)$1,000,000,000 for fiscal year 2019;and

(vi) $1,050,000,000 for fiscal year 2020.

Section 1101. AUTHORIZATION OF APPROPRIATIONS

(a) IN GENERAL. —The following sums are authorized to be

appropriated out of the Highway Trust Fund (other than the Mass

Transit Account):

*****

(3) FEDERAL LANDS AND TRIBAL TRANSPORTATION PROGRAM.—

(A) TRIBAL TRANSPORTATION PROGRAM.—For the tribal

transportation program under section 202 of title 23,

United States Code, $450,000,000 for each of fiscal years

2013 and 2014. -

(i) $800,000,000 for fiscal year 2015;


(iii)$900,000,000 for fiscal year 2017;

(iv)$950,000,000 for fiscal year 2018;

(v) $1,000,000,000 for fiscal year 2019; and

(vi) $1,050,000,000 for fiscal year 2020.

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b) Establish Tribal Asset Management Program at $50 million in FY 2015 with annual $5 million step increases to $75

million in FY 2020 for BIA and tribally owned transportation facilities.

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amendments

Title 23, United States Code, is amended to add a new section

―National Tribal Asset Management Program,‖ to read:

23 U.S.C § XXX(x) Insert

―(X) National tribal asset management program

―(a) ESTABLISHMENT.- The Secretary in cooperation with the

Secretary of the Interior shall establish and implement a national

tribal asset management program under this section.

―(b) PURPOSES.-The purpose of the national tribal asset

management program shall be-

―(1) to provide support for the condition and performance of

―(X) National tribal asset management program

―(a) ESTABLISHMENT.- The Secretary in cooperation with the

Secretary of the Interior shall establish and implement a national tribal

asset management program under this section.

―(b) PURPOSES.-The purpose of the national tribal asset management

program shall be-

―(1) to provide support for the condition and performance of tribal

transportation facilities and systems;

―(2) to ensure that investment of federal and tribal funds in

transportation facility construction are directed to support progress toward

Rationale: According to testimony at a recent Congressional hearing, transportation infrastructure serving tribal communities is the most unsafe,

rudimentary and under-maintained transportation network in the country. For many years, the Senate Indian Affairs Committee has created a

detailed record showing that the majority of roads that serve tribal communities are unsafe and unreliable, with motor vehicle accidents the

leading cause of death for Native Americans ages 1-34 and the third leading cause of death overall for Native Americans. These deplorable

conditions are a result of an over $63 billion construction backlog and the multi-billion dollar maintenance backlog for tribal transportation

facilities. Notwithstanding this maintenance backlog, the Department of the Interior – the agency with primary responsibility for maintaining

Indian reservation roads – has consistently failed to request funding from Congress sufficient to cover even its own estimate of the annual funds

needed to adequately maintain these routes. As a result, transportation barriers separate tribal communities from government centers, businesses,

schools, health facilities and commercial markets.

To address this backlog, this section increases funding for the Tribal Transportation Program to $800 million for FY 2015 with stepped increases

of $50 million for every year thereafter. In addition to helping tribes make modest headway into addressing the large unmet transportation

needs of tribal communities, these funds can be used by tribes for road maintenance. This funding increase will allow Tribes to begin to address

the huge road maintenance backlog that has resulted from the Department of the Interior’s multi-year failure to request funding sufficient to meet

the Department’s obligation to maintain Indian reservation roads.

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tribal transportation facilities and systems;

―(2) to ensure that investment of federal and tribal funds in

transportation facility construction are directed to support progress

toward the achievement of performance targets consistent with 23

USC 119 National highway performance program and established in

an asset management plan of a Tribe for the tribal transportation

system.

―(c) ELIGIBLE FACILITES.- Except as provided in subsection

(d), to be eligible for funding apportioned under this section, a

facility shall be located on the tribal transportation system as

defined in § 202(b)(1) and must have been previously constructed

using federal or tribal transportation funds.

―(d) ELIGIBLE PROJECTS.- Funds apportioned to a Tribe to

carry out the tribal transportation asset management program may

be obligated only for a project on an eligible facility that is-

―(1)(A) a project or part of a program of projects supporting

progress toward the achievement of national tribal transportation

performance goals for improving infrastructure condition, safety,

mobility, or freight movement on the tribal transportation system;

and

(B) consistent with the tribe’s long-range transportation plan;

and

―(2) for 1 or more of the following purposes:

―(A) Resurfacing (including sealing, application of dust

palliatives, replacement of original surface materials), restoration,

preservation or operational improvements of segments of the tribe’s

transportation system.

―(B) Preservation, and protection (including scour

countermeasures, seismic retrofits, impact protection measures,

security countermeasures, and protection against extreme events) of

bridges on the National Bridge Inventory and part of a tribe’s


―(C) Training of personnel to assure correct

implementation of preservation measures.

―(e) APPLICABLE LAWS AND REGULATIONS. – Notwithstanding any

other law or regulation, a tribal government shall not be subject to

the achievement of performance targets consistent with 23 USC 119

National highway performance program and established in an asset

management plan of a Tribe for the tribal transportation system.

―(c) ELIGIBLE FACILITES.- Except as provided in subsection (d), to

be eligible for funding apportioned under this section, a facility shall be

located on the tribal transportation system as defined in § 202(b)(1) and

must have been previously constructed using federal or tribal

transportation funds.

―(d) ELIGIBLE PROJECTS.- Funds apportioned to a Tribe to carry

out the tribal transportation asset management program may be obligated

only for a project on an eligible facility that is-

―(1)(A) a project or part of a program of projects supporting

progress toward the achievement of national tribal transportation

performance goals for improving infrastructure condition, safety,

mobility, or freight movement on the tribal transportation system; and

(B) consistent with the tribe’s long-range transportation plan; and

―(2) for 1 or more of the following purposes:

―(A) Resurfacing (including sealing, application of dust

palliatives, replacement of original surface materials), restoration,

preservation or operational improvements of segments of the tribe’s


―(B) Preservation, and protection (including scour

countermeasures, seismic retrofits, impact protection measures, security

countermeasures, and protection against extreme events) of bridges on the

National Bridge Inventory and part of a tribe’s transportation system.

―(C) Training of personnel to assure correct implementation of

preservation measures.

―(e) APPLICABLE LAWS AND REGULATIONS. – Notwithstanding

any other law or regulation, a tribal government shall not be subject to the

laws, regulations or other requirements applicable to state transportation

departments under the Federal-Aid Highway System, except to the extent

such laws and regulations are expressly made applicable to contracts,

compacts or government-to-government agreements entered into pursuant

to the Indian Self-Determination and Education Assistance Act (25 U.S.C.

450 et seq.), as amended. Unless expressly agreed to by the participating

Indian tribe, the participating Indian tribe shall not be subject to any

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the laws, regulations or other requirements applicable to state

transportation departments under the Federal-Aid Highway System,

except to the extent such laws and regulations are expressly made

applicable to contracts, compacts or government-to-government

agreements entered into pursuant to the Indian Self-Determination

and Education Assistance Act (25 U.S.C. 450 et seq.), as amended.

Unless expressly agreed to by the participating Indian tribe, the

participating Indian tribe shall not be subject to any agency circular,

policy, manual, guidance, or rule adopted by the Department of

Transportation, except regulations promulgated under section

207(n) of this Act.

―(f) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to

be appropriated from the Highway Trust Fund (other than the Mass

Transit Account) to carry out this section $50,000,000 for fiscal

year 2015, $55,000,000 for fiscal year 2016, $60,000,000 for fiscal

year 2017, $65,000,000 for fiscal year 2018, $70,000,000 for fiscal

year 2019, and $75,000,000 for fiscal year 2020.

―(g) Distribution.- The Secretary shall develop a national

distribution formula for purposes of distributing funding under this

section that provides priority to:

―(A) Tribal transportation facilities identified within a tribal

transportation asset management plan that are:

―(1) owned by the BIA and were constructed, reconstructed,

or rehabilitated after 1995;or

―(2) owned by a tribal government and were constructed,

reconstructed, or rehabilitated after 1995.

―(B) The development of tribal asset management plans.

agency circular, policy, manual, guidance, or rule adopted by the

Department of Transportation, except regulations promulgated under

section 207(n) of this Act.

―(f) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be

appropriated from the Highway Trust Fund (other than the Mass Transit

Account) to carry out this section $50,000,000 for fiscal year 2015,

$55,000,000 for fiscal year 2016, $60,000,000 for fiscal year 2017,

$65,000,000 for fiscal year 2018, $70,000,000 for fiscal year 2019, and

$75,000,000 for fiscal year 2020.

―(g) Distribution.- The Secretary shall develop a national distribution

formula for purposes of distributing funding under this section that

provides priority to:

―(A) Tribal transportation facilities identified within a tribal

transportation asset management plan that are:

―(1) owned by the BIA and were constructed, reconstructed, or

rehabilitated after 1995; or

―(2) owned by a tribal government and were constructed,

reconstructed, or rehabilitated after 1995.

―(B) The development of tribal asset management plans.

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(c) Increase funding for the Tribal Transit Program:

i. Discretionary funding increase to $10 million in FY 2015 with annual $5 million step increases to $35

million in FY 2020;

ii. Formula funding increase to $35 million for FY 2015 with annual $5 million step increases to $60 million in

FY 2020;

iii. Ensure established tribal transit programs receive formula funding that is no less than the highest amount of

operations funding received since the creation of the Tribal Transit Program in FY 2005.

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amendments

Amend Section 5311 of title 49, United States Code, as

amended by section 20010 of Pub. L. 112-141, as

follows:

§ 5311. Formula grants for rural areas

* * *

(c) APPORTIONMENTS.—

(1) PUBLIC TRANSPORTATION ON INDIAN

RESERVATIONS.—Of the amounts made available or

appropriated for each fiscal year pursuant to section 5338(a)(2)(E)

to carry out this paragraph, the following amounts shall be

§ 5311. Formula grants for rural areas

* * *

(c) APPORTIONMENTS.—

(1) PUBLIC TRANSPORTATION ON INDIAN

RESERVATIONS.—Of the amounts made available or appropriated for

each fiscal year pursuant to section 5338(a)(2)(E) to carry out this

paragraph, the following amounts shall be apportioned for grants to Indian

tribes for any purpose eligible under this section, under such terms and

conditions as may be established by the Secretary:

Rational: The goal behind asset management is to preserve and extend the federal investment in transportation infrastructure through a structured

sequence of maintenance, preservation, repair, rehabilitation and replacement actions to achieve and sustain a desired state of good repair over the

lifecycle of the assets at a minimum practicable cost. MAP-21 introduced the National highway performance program to focus on the need to

preserve and extend the federal investment in the national highway system. This proposal is an extension of that concept which is to preserve and

extend the investment made in the tribal transportation system. This section was developed by modifying language from 23 USC § 119, National

highway performance program and incorporating concepts from the National tribal transportation facility inventory.

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apportioned for grants to Indian tribes for any purpose eligible

under this section, under such terms and conditions as may be

established by the Secretary:

(A) The following amounts shall be distributed on a competitive

basis by the Secretary for each fiscal year:

(1) $10,000,000 for fiscal year 2015;

(2) $15,000,000 for fiscal year 2016;

(3) $20,000,000 for fiscal year 2017;

(4) $25,000,000 for fiscal year 2018;

(5) $30,000,000 for fiscal year 2019; and

(6) $35,000,000 for fiscal year 2020.

(B) The following amounts shall be apportioned as formula grants,

as provided in subsection (j) for each fiscal year:

(1) $35,000,000 for fiscal year 2015;

(2) $40,000,000 for fiscal year 2016;

(3) $45,000,000 for fiscal year 2017;

(4) $50,000,000 for fiscal year 2018;


(6) $60,000,000 for fiscal year 2020.

* * *

Amend section 5311(j)(1)(A) to add a new subparagraph (iv) as

follows:

(j) FORMULA GRANTS FOR PUBLIC TRANSPORTATION ON

INDIAN RESERVATIONS.—

(1) APPORTIONMENT.—

(A) IN GENERAL.—Of the amounts described in

subsection (c)(1)(B)—

(A) $5,000,000 The following amounts shall be distributed on a

competitive basis by the Secretary for each fiscal year: .

(1) $10,000,000 for fiscal year 2015;

(2) $15,000,000 for fiscal year 2016;

(3) $20,000,000 for fiscal year 2017;

(4) $25,000,000 for fiscal year 2018;


(6) $35,000,000 for fiscal year 2020.

(B) $25,000,000 The following amounts shall be apportioned as formula

grants, as provided in subsection (j) for each fiscal year: .

(1) $35,000,000 for fiscal year 2015;

(2) $40,000,000 for fiscal year 2016;

(3) $45,000,000 for fiscal year 2017;

(4) $50,000,000 for fiscal year 2018;


(6) $60,000,000 for fiscal year 2020.

* * *

(j) FORMULA GRANTS FOR PUBLIC TRANSPORTATION ON

INDIAN RESERVATIONS.—

(1) APPORTIONMENT.—

(A) IN GENERAL.—Of the amounts described in subsection

(c)(1)(B)—

* * *

(iv) Before calculating and distributing formula grants under

this section, the Secretary shall ensure that an Indian tribe that received a

public transportation grant under section 3013(c) of Pub. L. 109-59 during

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* * *

(iv) Before calculating and distributing formula grants

under this section, the Secretary shall ensure that an Indian tribe that

received a public transportation grant under section 3013(c) of Pub.

L. 109-59 during fiscal years 2005 through 2012, receives not less

than the highest amount awarded to the Indian tribe for operating

costs received under section 3013(c) of Pub. L. 109-59 if, by

operation of the formula allocation in this section, the Indian tribe’s

formula grant award falls below an award previously made to the

Indian tribe under section 3013(c) of Pub. L. 109-59.

fiscal years 2005 through 2012, receives not less than the highest amount

awarded to the Indian tribe for operating costs received under section

3013(c) of Pub. L. 109-59 if, by operation of the formula allocation in this

section, the Indian tribe’s formula grant award falls below an award

previously made to the Indian tribe under section 3013(c) of Pub. L. 109-

59.

Rationale: This section increases funding for discretionary and formula Tribal Transit grants over the six-year reauthorization to increase

discretionary public transportation grants from $5 million annually to $35 million and formula public transportation grants from $25 million to $60

million annually. In addition, the section would ensure that Indian tribes with an established public transit system, that received a discretionary

grant for operating costs under SAFETEA-LU’s section 5311(c) Public Transportation on Indian Reservation Program, receives not less than the

highest amount for operations costs that the Indian tribe received since the creation of the Tribal Transit Program in FY 2005. Many Indian tribes

received discretionary Tribal Transit grants under SAFETEA-LU (Pub. L. 109-59) between FY 2005 and FY 2012 which enabled the tribes to

establish or improve public transportation systems on their reservations and Native communities. By Fiscal year 2009, the discretionary Tribal

Transit Grant Program under Section 5311(c) had grown to $15 million annually and continued through fiscal year 2012 at that amount. With

passage of MAP-21, Pub. L. 112-141, in July 2012, the discretionary Tribal Transit Program allocation was reduced to $5 million per year (Sec.

20010 of MAP-21) and a formula grant was created with an apportionment of $25 million annually. Many Indian tribes that had received

discretionary Tribal Transit Grant awards under SAFETEA-LU saw their formula amount significantly diminished under MAP-21’s formula

allocation and had to cease, curtail or find alternate funds to operate public transportation systems on their reservations and communities. As

amended, MAP-21 would increase funding for Tribal Transit grants and require the Secretary of Transportation to calculate the highest

discretionary award made to an Indian tribe for operating costs since FY 2005 and provide not less than that amount to the Indian tribe. The

increase in public transportation funds authorized for Indian tribes reflects the large unmet need and transportation barriers that continue to exist in

Indian country.

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(d) Restore Highway Trust Fund allocation for the Tribal High Priority Projects Program and:

i. Increase funding to $35 million in FY 2015 with annual $5 million step increases to $60 million in FY 2020;

ii. Increase maximum grant amount to $1.5 million when funding increases above $35 million.

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amendments

(a) IN GENERAL.— Section 213(b) of title 23, United States

Code, is amended to read as follows:

―(b) CONFORMING AMENDMENT.—The analysis for

chapter 2 of title 23, United States Code, is amended by

striking the item relating to section 213 and inserting the

following:

‗‗213. Transportation alternatives‘‘.

Sections 1123(f) and (h)(1) of Pub. L. 112-141, is amended

as follows:

(f) LIMITATION ON PROJECT AMOUNTS.— For

fiscal year 2015, project funding shall be limited to a

maximum of $1,000,000 per application, but for each fiscal

year thereafter in which funding for this program exceeds

$35,000,000, project funding shall be limited to a

maximum of $1,500,000 per application, except that

funding for disaster or emergency projects shall also be

limited to the estimated cost of repairing damage to the

tribal transportation facility regardless of fiscal year.

(h) AUTHORIZATION OF APPROPRIATIONS.—

(1) IN GENERAL.—There is authorized to be

appropriated from the Highway Trust Fund to carry

Section 1123 of P.L. 112-141 is amended as follows:

SEC. 1123. TRIBAL HIGH PRIORITY PROJECTS PROGRAM.

* * *

(f) LIMITATION ON PROJECT AMOUNTS.—For Fiscal Year

2015, Pproject funding shall be limited to a maximum of

$1,000,000 per application, but for each fiscal year thereafter in

which funding for this program exceeds $35,000,000, project funding

shall be limited to a maximum of $1,500,000 per application,

except that funding for disaster or emergency projects shall also

be limited to the estimated cost of repairing damage to the tribal

transportation facility regardless of fiscal year.

(h) AUTHORIZATION OF APPROPRIATIONS-

(1) IN GENERAL- There is authorized to be

appropriated $30,000,000 out of the general fund of

the Treasury to carry out the program for each of

fiscal years 2013 and 2014 from the Highway Trust

Fund to carry out the program $35,000,000 for

fiscal year 2015, $40,000,000 for fiscal year 2016,

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out the program $35,000,000 for fiscal year 2015,

$40,000,000 for fiscal year 2016, $45,000,000 for


$55,000,000 for fiscal year 2019, and $60,000,000 for

fiscal year 2020.

$45,000,000 for fiscal year 2017, $50,000,000 for


and $60,000,000 for fiscal year 2020.

(e) Redistribute 10% of unused obligation authority to the TTP to fund competitively awarded grants to more remotely located

Tribal Nations

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amendments

Amend section 201(b) of title 23 United States Code, Federal Lands

and Tribal Transportation Programs, to add a new subparagraph (8)

to read:

23 U.S.C. §201(b)(8), is amended to read:

―(8) REDISTRIBUTION OF UNUSED OBLIGATION AUTHORITY.-

Rationale: The Tribal High Priority Project (HPP) fund is a critical pool of funding to ensure that tribes suffering emergency conditions that

require road or bridge replacement can access funding to take care of those issues quickly. Additionally, the HPP fund enables tribes that have

received too little funding to complete the highest priority project on the tribe’s inventory to compete for grants of up to $1,000,000—increasing

to $1.5 million in this language—so they can construct those projects. Absent this source of funds, many tribes are unable to undertake vitally

important construction projects because their annual tribal shares represent only a small fraction of the project construction cost. All tribes are

eligible to apply for the HPP fund regardless of funding received in the TTP program, and this language does not change that.

This amendment will institute step increases for the Tribal HPP fund from $35 million in FY 2015 to $60 million in 2020, in order to address

continuing need for construction of transportation facilities in Indian Country. The language will also increase the maximum size of the grant

under the program from $1 million to $1.5 million after there is $35 million or more in funding available. Prior to MAP-21 the program was

funded through the Highway Trust Fund, but no funding has been appropriated from the General Fund for the program under MAP-21. The

amendment will also transfer appropriations from the General Fund to the Highway Trust Fund.

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―(8) REDISTRIBUTION OF UNUSED OBLIGATION

AUTHORITY.- To the extent that the Secretary is otherwise

required to redistribute unused obligation authority appropriated for

purposes other than section 202 of this Act, a minimum of 10

percent of such unused obligation authority shall be used by the

Secretary to competitively award high priority projects to any Indian

tribe otherwise eligible to receive Tribal shares under section 202, to

ensure greater safe access to markets for American Indian and

Alaska Native communities that are, relative to other American

Indian and Alaska Native communities, more remotely located from

project and essential service markets under such criteria as the

Secretary shall establish by regulation.

To the extent that the Secretary is otherwise required to redistribute

unused obligation authority appropriated for purposes other than section

202 of this Act, a minimum of 10 percent of such unused obligation

authority shall be used by the Secretary to competitively award high

priority projects to any Indian tribe otherwise eligible to receive Tribal

shares under section 202, to ensure greater safe access to markets for

American Indian and Alaska Native communities that are, relative to other

American Indian and Alaska Native communities, more remotely located

from project and essential service markets under such criteria as the

Secretary shall establish by regulation.

(f) Separately fund the TTP Bridge Program at $75 million in FY 2015 with annual step increases of $5 million annually to $100

million in FY 2020 and authorize the use of funds for the construction and design of new bridges.

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amendments

Section 1119. FEDERAL LANDS AND TRIBAL TRANSPORTATION

PROGRAMS.

Section 202(d)(2) of Title 23, United States Code:

(d) Tribal transportation facility bridges.—

Rationale. This amendment, first proposed in section 201(a)(6) of H.R. 7, approved by the House Transportation and Infrastructure Committee on

February 2, 2012, would authorize the Secretary of Transportation to withhold a minimum of 10% of unused obligation authority for high priority

projects for Indian tribes and Alaska Native villages that are more remotely located from product and essential service markets than other

American Indian and Alaska Native communities under regulations issued by the Secretary. In FY 2014, the application of the obligation

limitation deduction to the TTP Program withdrew $22.9 million from the program. This amendment is intended to restore funding to the TTP

Program to address acute unmet needs many Indian tribes and Alaska Native villages face to complete a high priority transportation project.

Page | 15 136703.1

Section 202(d)(2) of such title is amended to read as follows:

(d) Tribal transportation facility bridges.—

*****

(2) Funding. For the tribal transportation facility bridges

program, the following amounts for the following purposes:

(i) $75,000,000 for fiscal year 2015;




(v) $95,000,000 for fiscal year 2019; and

(vi) $100,000,000 for fiscal year 2020.

(A) to carry out any planning, design, engineering,

preconstruction, construction, and inspection of new or

replacement tribal transportation facility bridges, or to

replace, rehabilitate, seismically retrofit, paint, apply

calcium magnesium acetate, sodium acetate/formate, or

other environmentally acceptable, minimally corrosive anti-

icing and deicing composition; or

(B) to implement any countermeasure for deficient tribal

transportation facility bridges, including multiple-pipe

culverts.

*****

(2) Funding. For the tribal transportation facility bridges program, the

following amounts for the following purposes: --Before making any

distribution under subsection (b), the Secretary shall set aside not more

than 2 percent of the funds made available under the tribal

transportation program for each fiscal year to be allocated—

(i) $75,000,000 for fiscal year 2015;




(v) $95,000,000 for fiscal year 2019; and

(vi) $100,000,000 for fiscal year 2020.

(A) to carry out any planning, design, engineering,

preconstruction, construction, and inspection of new or

replacement tribal transportation facility bridges, or to replace,

rehabilitate, seismically retrofit, paint, apply calcium magnesium

acetate, sodium acetate/formate, or other environmentally

acceptable, minimally corrosive anti-icing and deicing

composition; or

(B) to implement any countermeasure for deficient tribal

transportation facility bridges, including multiple-pipe culverts.

Rationale: More than one fourth of all Tribal Transportation Program bridges are currently rated as deficient. The cost of rehabilitating or

replacing over 1000 deficient tribal bridges exceeds $600 million, yet MAP-21 provides less than $9 million per year to address this dire health

and safety problem which contributes to the transportation barriers that existing in Indian Country. To make inroads into rehabilitating or

replacing these deficient bridges, this legislation proposes increased funding for the TTP Bridge Program to $75 million for FY 2015, with

stepped increases of $5 million per year to $100 million by FY 2020. This section also expands eligible uses of TTP bridge program funds to

include the construction of new TTP bridges. Under current law, this program is intended to fund only the replacement and rehabilitation of

existing deficient bridges. But many Indian tribes need new bridges to adequate serve their populations.

Page | 16 136703.1

(g) Establish $75,000 as the minimum annual TTP Program funding allocation for all Tribes;

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amendments

Amend 23 U.S.C. § 202(b)(3) to insert a new

subparagraph (D):

―(D) Tribal Minimum Allocation.- When TTP

allocations increase to a level where the total funding

available for the distribution under this subsection plus

the 2 percent transportation planning distribution under

subsection (c) is no less than the amount available for

the FY2014 distributions plus the amount needed to

provide every tribe a total funding formula distribution

of no less than $75,000, the Secretary shall allocate

funds such that each tribe’s total TTP Program formula

distributions is no less than $75,000.‖

23 U.S.C. § 202(b)(3):

“(D) Tribal Minimum Allocation.- When TTP allocations increase to a

level where the total funding available for the distribution under this

subsection plus the 2 percent transportation planning distribution under

subsection (c) is no less than the amount available for the FY2014

distributions plus the amount needed to provide every tribe a total funding

formula distribution of no less than $75,000, the Secretary shall allocate

funds such that each tribe’s total TTP Program formula distributions is no

less than $75,000.‖

Rationale: A minimum level of funding is necessary for tribal governments to develop successful transportation programs. This section sets the

minimum level of funding at $75,000 per tribe when funds exceed the 2014 formula distribution at a level that allows for a $75,000 minimum

subsidy set-aside from the amount available for the formula distribution. The minimum funding for any Tribe is the combined amount of 2%

transportation planning, the TTP funding distribution, and the minimum funding subsidy to bring the combined total to $75,000. The $75,000

minimum funding does not include any competitive or discretionary transportation funds available to and awarded to the respective Tribe. This

level of funding is considered barely sufficient to allow tribes the opportunity to collect data, plan, and participate in the various Federal and state

transportation programs and activities available to tribal governments.

Page | 17 136703.1

(h) Restore the TTP exemption from the Obligation Limitation deduction;

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amendments

Section 1102. OBLIGATION CEILING

(a) OBLIGATION CEILING.—Section 1102 of the Moving

Ahead for Progress in the 21st Century Act (MAP-21) is amended

in subsection (b) by striking ―and‖ at the end of clause (11), by

striking ―.‖ at the end of clause (12), by inserting ―; and‖ at the

end of clause (12) and by adding at the end the following:

―(13) subsection (e) of section 202 of title 23, United States

Code.‖

Section 1102(b) of Pub. L. 112-141 is amended to read:

(b) EXCEPTIONS.--The limitations under subsection (a) shall not

apply to obligations under or for—

*****

(11) section 1603 of SAFETEA–LU (23 U.S.C. 118 note; 119 Stat. 1248),

to the extent that funds obligated in accordance with that section were not

subject to a limitation on obligations at the time at which the funds were

initially made available for obligation; and

(12) section 119 of title 23, United States Code (but, for each of fiscal

years 2013 through 2014, only in an amount equal to $639,000,000 for

each of those fiscal years).and;

(13) section 202 of title 23, United States Code.

Page | 18 136703.1

(i) Reduce BIA and FHWA program management and project-related administrative expenses from 6% to 5% with an annual cap of $28

million.

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amendments

Subsection (a)(6) of Section 202 title 23 United

States Code is amended as follows:

―(6) ADMINISTRATIVE EXPENSES.—Of the funds

authorized to be appropriated for the tribal

transportation program, not more than 5 percent up

to a maximum amount of $28 million annually,

whichever is lesser, may be used by the Secretary or

the Secretary of the Interior for program

management and oversight and project-related

administrative expenses.‖

23 U.S.C. 202(a)(6) is amended to read:

―(6) ADMINISTRATIVE EXPENSES.—Of the funds authorized to be

appropriated for the tribal transportation program, not more than 6 5

percent up to a maximum amount of $28 million annually, whichever

is lesser, may be used by the Secretary or the Secretary of the Interior

for program management and oversight and project-related

administrative expenses.‖

Rationale: The obligation limitation is a financing mechanism that effectively deducts a certain percentage of funds (approximately 6%-13% in

years past) each fiscal year from the Federal Lands Highways Program (which includes the TTP Program and the TTP Bridge Program). F o r

t h e t e n y e a r p e r i o d 2 0 0 5 t h r o u g h 2 0 1 4 , a p p r o x i m a t e l y $ 2 9 6 m i l l i o n h a s b e e n w i t h i n d r a w n

f r o m t h e I R R a n d T T P p r o g r a m d u e t o o p e r a t i o n o f t h e o b l i g a t i o n l i m i t a t i o n d e d u c t i o n .

Prior to passage of the Transportation Equity Act of the 21st

Century (TEA-21), the Federal Lands Highways Program was exempt from the

obligation limitation annual deduction. The inclusion of the Federal Lands Highways Program, including the TTP and TTP Bridge Programs, in

the obligation limitation results in the loss of tens of millions of dollars of otherwise authorized and much-needed tribal transportation funds

every year. This provision would reinstate the exemption for tribal transportation programs and would thereby assure that the TTP Program,

the TTP Bridge Program and the proposed Federal Lands Highway Tribal Transportation Safety Program are funded at their full authorized

levels.

Page | 19 136703.1

2. Decrease the high rate of fatalities and injuries on Tribal Transportation Systems.

a) Supplement the 2% set aside for highway safety projects within the Tribal Transportation Program authorization with additional

Highway Safety Improvement Program funds from the Highway Safety Improvement Program for the purpose of reducing traffic

fatalities and injuries on tribal transportation systems which are two to three times higher than the national average.

b) Increase set-aside of NHTSA Tribal Safety Program to 3.5% to address safety issues on Tribal transportation systems.

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amendments

Section 104(c)(2)(A) of title 23, United States Code, is amended as

follows:

§ 104. Apportionment

* * *

(c) Calculation of State amounts.—

* * *

(2) For Fiscal Year 2015 – 2020—

§ 104. Apportionment

* * *

(c) Calculation of State amounts.-

(2) FOR FISCAL YEARS 2015-2020.—

(A) STATE SHARE.—For fiscal years 2014, 2015-2020, the amount

for each State of combined apportionments for the national highway

performance program under section 119, the surface transportation

program under section 133, the highway safety improvement program

Rationale: There is increasing concern in Indian Country that funding for construction, maintenance, and safety improvements is being diverted

into oversight and administration in the Department of Transportation and Department of Interior. Particularly with the improvements contained

in this proposed legislation that expands the right of tribes to run their own transportation programs via self-governance agreements, it is not

necessary for centralized federal agency oversight to expand.

This language would cap the amount of administrative expenses the Secretaries of Transportation and Interior could take from tribal transportation

programs at 5% of the tribal transportation program or $28 million, whichever is lesser. The level is currently set at 6%, without a dollar cap.

Page | 20 136703.1

(A) STATE SHARE.—For fiscal years 2015-2020, the amount

for each State of combined apportionments for the national highway

performance program under section 119, the surface transportation

program under section 133, the highway safety improvement

program under section 148, the congestion mitigation and air quality

improvement program under section 149, and to carry out section

134 shall be determined as follows:

* * *

(ii) ADJUSTMENTS TO AMOUNTS.—The initial amounts

resulting from the calculation under clause (i) shall be adjusted to

ensure that, for each State, the amount of combined

apportionments for the programs shall not be less than 95 percent

of the estimated tax payments attributable to highway users in the

State paid into the Highway Trust Fund (other than the Mass

Transit Account) in the most recent fiscal year for which data are

available; provided, however, that of the amount apportioned to

the States for the highway safety improvement program under

section 104(b)(3), the Secretary shall apportion at least 2 percent to

be used for competitive grants to be made directly by the Secretary

to Indian tribes to reduce traffic fatalities and injuries on Tribal

Transportation systems.

Section 402(c)(2) of title 23, United States Code, is amended by

striking ―2 percent‖ and inserting ―3 ½ percent‖.

under section 148, the congestion mitigation and air quality improvement

program under section 149, and to carry out section 134 shall be

determined as follows:

* * *

(ii) ADJUSTMENTS TO AMOUNTS.—The initial amounts

resulting from the calculation under clause (i) shall be adjusted to ensure

that, for each State, the amount of combined apportionments for the

programs shall not be less than 95 percent of the estimated tax payments

attributable to highway users in the State paid into the Highway Trust

Fund (other than the Mass Transit Account) in the most recent fiscal year

for which data are available; provided, however, that of the amount

apportioned to the States for the highway safety improvement program

under section 104(b)(3), the Secretary shall apportion at least 2 percent of

such funds to augment the competitive grants made by the Secretary to

Indian tribes under section 202(e) of this title to reduce traffic fatalities

and injuries on Tribal Transportation systems.

Section 402(c)(2) Apportionment of title 23, United States Code, is

amended to strike ―2 percent‖ and insert ―3 ½ percent‖ as follows:

“(2) Apportionment.— Except for amounts identified in section 403(f),

funds described in paragraph (1) shall be apportioned 75 per centum in the

ratio which the population of each State bears to the total population of all

the States, as shown by the latest available Federal census, and 25 per

centum in the ratio which the public road mileage in each State bears to

the total public road mileage in all States. For the purposes of this

subsection, a ―public road‖ means any road under the jurisdiction of and

maintained by a public authority and open to public travel. Public road

mileage as used in this subsection shall be determined as of the end of the

calendar year preceding the year in which the funds are apportioned and

shall be certified to by the Governor of the State and subject to approval

by the Secretary. The annual apportionment to each State shall not be less

than three-quarters of 1 percent of the total apportionment, except that the

http://www.law.cornell.edu/uscode/text/23/403

http://www.law.cornell.edu/uscode/text/23/403

Page | 21 136703.1

apportionment to the Secretary of the Interior shall not be less than 2

percent 3 ½ percent of the total apportionment and the apportionments to

the Virgin Islands, Guam, American Samoa, and the Commonwealth of

the Northern Mariana Islands shall not be less than one-quarter of 1 per

centum of the total apportionment. . . .‖

Rationale: Traffic fatalities and serious injuries among Native Americans occur at rates two to three times the national average on Tribal

Transportation systems. Supplementing the modest highway safety competitive grant program within the Tribal Transportation Program

authorization (23 U.S.C. 202(e)), with two percent of the apportionment made under MAP-21 for the Highway Safety Improvement Program is

an expedient means to distribute highway safety funds to Indian tribes for much needed highway safety improvement projects using an existing

competitive grant system within the Federal Highway Administration. This action, together with increasing NHTSA funds to the Secretary of the

Interior for highway safety grants will establish a pool of funds for the Secretary of Transportation and Secretary of the Interior to make direct

awards of competitive highway safety grants to Indian tribes to help reduce traffic fatalities and serious injuries among Native Americans.

Page | 22 136703.1

3. Create a Tribal Self-Governance Program under the U.S. Department of Transportation. Creating a Self-Governance Program will

streamline grant-funding agreements for federal transportation programs and more efficiently target limited transportation dollars to the

improvement of Tribal transportation systems. This important step will provide an additional option to Tribes and will not supplant the

existing TTP agreements. (HR7)

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amendments

(a) IN GENERAL.—Chapter 2 of Title 23 United States Code

is amended by inserting after section 206 the following:

―§ 207. Tribal transportation self-governance program

―(a) ESTABLISHMENT.—Subject to the requirements of this

section, the Secretary shall establish and carry out a program to

be known as the tribal transportation self-governance program.

The Secretary may delegate responsibilities for administration

of the program as the Secretary determines appropriate.

―(b) ELIGIBILITY.—

―(1) IN GENERAL.—An Indian tribe shall be eligible to

participate in the program if the Indian tribe—

―(A) requests participation in the program by

resolution or other official action by the governing body

of the Indian tribe; and

―(B) demonstrates, for the preceding 3 fiscal years,

financial stability and financial management

capability.

―(2) CRITERIA FOR DETERMINING FINANCIAL STABILITY

AND FINANCIAL MANAGEMENT CAPACITY.—For the

purposes of paragraph (1)(B), evidence that, during the

preceding 3 fiscal years, an Indian tribe had no uncorrected

significant and material audit exceptions in the required

(a) IN GENERAL.—Chapter 2 of Title 23 United States Code is

amended by inserting after section 206 the following:

―§ 207. Tribal transportation self-governance program

―(a) ESTABLISHMENT.—Subject to the requirements of this

section, the Secretary shall establish and carry out a program to be

known as the tribal transportation self-governance program. The

Secretary may delegate responsibilities for administration of the

program as the Secretary determines appropriate.

―(b) ELIGIBILITY.—

―(1) IN GENERAL.—An Indian tribe shall be eligible to

participate in the program if the Indian tribe—

―(A) requests participation in the program by resolution

or other official action by the governing body of the Indian

tribe; and

―(B) demonstrates, for the preceding 3 fiscal years,

financial stability and financial management capability.

―(2) CRITERIA FOR DETERMINING FINANCIAL STABILITY AND

FINANCIAL MANAGEMENT CAPACITY.—For the purposes of

paragraph (1)(B), evidence that, during the preceding 3 fiscal

years, an Indian tribe had no uncorrected significant and

material audit exceptions in the required annual audit of the

Indian tribe‘s self-determination contracts or self-governance

Page | 23 136703.1

annual audit of the Indian tribe‘s self-determination

contracts or self-governance funding agreements with any

Federal agency shall be conclusive evidence of the required

stability and capability.

―(c) COMPACTS.—

―(1) COMPACT REQUIRED.—Upon the request of an

eligible Indian tribe, and subject to the requirements of this

section, the Secretary shall negotiate and enter into a

written compact with the Indian tribe for the purpose of

providing for the participation of the Indian tribe in the

program.

―(2) CONTENTS.—A compact entered into under

paragraph (1) shall set forth the general terms of the

government-to-government relationship between the Indian

tribe and the United States under the program and other

terms that will continue to apply in future fiscal years.

―(3) AMENDMENTS.—A compact entered into with an

Indian tribe under paragraph (1) may be amended only by

mutual agreement of the Indian tribe and the Secretary.

―(d) ANNUAL FUNDING AGREEMENTS.—

―(1) FUNDING AGREEMENT REQUIRED.—After entering

into a compact with an Indian tribe under subsection (c),

the Secretary shall negotiate and enter into a written

annual funding agreement with the Indian tribe.

―(2) CONTENTS.—

―(A) IN GENERAL.—

―(i) DISCRETIONARY AND COMPETITIVE

GRANTS.—A funding agreement entered into with

an Indian tribe shall authorize the Indian tribe, as

determined by the Indian tribe, to plan, conduct,

consolidate, administer, and receive full tribal

share funding and funding to tribes from

discretionary and competitive grants

administered by the Department for all programs,

services, functions, and activities (or portions

thereof) that are made available to Indian tribes

to carry out tribal transportation programs and

programs, services, functions, and activities (or

funding agreements with any Federal agency shall be conclusive

evidence of the required stability and capability.

―(c) COMPACTS.—

―(1) COMPACT REQUIRED.—Upon the request of an eligible

Indian tribe, and subject to the requirements of this section, the

Secretary shall negotiate and enter into a written compact with

the Indian tribe for the purpose of providing for the participation

of the Indian tribe in the program.

―(2) CONTENTS.—A compact entered into under paragraph

(1) shall set forth the general terms of the government-to-

government relationship between the Indian tribe and the United

States under the program and other terms that will continue to

apply in future fiscal years.

―(3) AMENDMENTS.—A compact entered into with an Indian

tribe under paragraph (1) may be amended only by mutual

agreement of the Indian tribe and the Secretary.

―(d) ANNUAL FUNDING AGREEMENTS.—

―(1) FUNDING AGREEMENT REQUIRED.—After entering into a

compact with an Indian tribe under subsection (c), the Secretary

shall negotiate and enter into a written annual funding

agreement with the Indian tribe.

―(2) CONTENTS.—


―(i) DISCRETIONARY AND COMPETITIVE GRANTS.—A

funding agreement entered into with an Indian tribe

shall authorize the Indian tribe, as determined by the

Indian tribe, to plan, conduct, consolidate, administer,

and receive full tribal share funding and funding to

tribes from discretionary and competitive grants

administered by the Department for all programs,

services, functions, and activities (or portions thereof)

that are made available to Indian tribes to carry out

tribal transportation programs and programs, services,

functions, and activities (or portions thereof)

administered by the Secretary that are otherwise

available to Indian tribes.

―(ii) TRANSFERS OF STATE FUNDS.—

―(I) INCLUSION OF TRANSFERRED FUNDS IN

Page | 24 136703.1

portions thereof) administered by the Secretary

that are otherwise available to Indian tribes.

―(ii) TRANSFERS OF STATE FUNDS.—

―(I) INCLUSION OF TRANSFERRED FUNDS

IN FUNDING AGREEMENT.—A funding

agreement entered into with an Indian tribe

shall include Federal-aid funds apportioned

to a State under chapter 1 if the State elects

to provide a portion of such funds to the

Indian tribe for a project eligible under

section 202(b).

―(II) METHOD FOR TRANSFERS.—If a

State elects to provide funds described in

subclause (I) to an Indian tribe, the State

shall transfer the funds back to the Secretary

and the Secretary shall transfer the funds to

the Indian tribe in accordance with this

section.

―(III) RESPONSIBILITY FOR TRANSFERRED

FUNDS.—Notwithstanding any other

provision of law, if a State provides funds

described in subclause (I) to an Indian tribe—

―(aa) the State shall not be

responsible for constructing or

maintaining a project carried out using

the funds or for administering or

supervising the project or funds during

the applicable statute of limitations

period related to the construction of the

project; and

―(bb) the Indian tribe shall be

responsible for constructing and

maintaining a project carried out using

the funds and for administering and

supervising the project and funds in

accordance with this section during the

applicable statute of limitations period

related to the construction of the project.

FUNDING AGREEMENT.—A funding agreement

entered into with an Indian tribe shall include

Federal-aid funds apportioned to a State under

chapter 1 if the State elects to provide a portion of

such funds to the Indian tribe for a project eligible

under section 202(b).

―(II) METHOD FOR TRANSFERS.—If a State

elects to provide funds described in subclause (I) to

an Indian tribe, the State shall transfer the funds

back to the Secretary and the Secretary shall

transfer the funds to the Indian tribe in accordance

with this section.

―(III) RESPONSIBILITY FOR TRANSFERRED

FUNDS.—Notwithstanding any other provision of

law, if a State provides funds described in

subclause (I) to an Indian tribe—

―(aa) the State shall not be responsible for

constructing or maintaining a project carried

out using the funds or for administering or

supervising the project or funds during the

applicable statute of limitations period related

to the construction of the project; and

―(bb) the Indian tribe shall be responsible

for constructing and maintaining a project

carried out using the funds and for

administering and supervising the project and

funds in accordance with this section during

the applicable statute of limitations period

related to the construction of the project.

―(B) ADMINISTRATION OF TRIBAL SHARES.—The tribal

shares referred to in subparagraph (A) shall be provided

without regard to the agency or office of the Department

within which the program, service, function, or activity (or

portion thereof) is performed.

―(C) FLEXIBLE AND INNOVATIVE FINANCING.—

―(i) IN GENERAL.—A funding agreement entered

into with an Indian tribe under paragraph (1) shall

include provisions pertaining to flexible and innovative

Page | 25 136703.1

―(B) ADMINISTRATION OF TRIBAL SHARES.—The

tribal shares referred to in subparagraph (A) shall be

provided without regard to the agency or office of the

Department within which the program, service,

function, or activity (or portion thereof) is performed.

―(C) FLEXIBLE AND INNOVATIVE FINANCING.—

―(i) IN GENERAL.—A funding agreement

entered into with an Indian tribe under paragraph

(1) shall include provisions pertaining to flexible

and innovative financing if agreed upon by the

parties.

―(ii) TERMS AND CONDITIONS.—

―(I) AUTHORITY TO ISSUE

REGULATIONS.—The Secretary may issue

regulations to establish the terms and

conditions relating to the flexible and

innovative financing provisions referred to in

clause (i).

―(II) TERMS AND CONDITIONS IN

ABSENCE OF REGULATIONS.—If the Secretary

does not issue regulations under subclause

(I), the terms and conditions relating to the

flexible and innovative financing provisions

referred to in clause (i) shall be consistent

with—

―(aa) agreements entered into by the

Department under section 202(c)(8)

before the date of enactment of the

American Energy and Infrastructure

Jobs Act of 2012; or

―(bb) regulations of the Department

of the Interior relating to flexible

financing contained in part 170 of title

25, Code of Federal Regulations, as in

effect on the date of enactment of such

Act.

―(3) DISCRETIONARY AND COMPETITIVE GRANTS.—

Notwithstanding any other provision of law, an Indian tribe

financing if agreed upon by the parties.

―(ii) TERMS AND CONDITIONS.—

―(I) AUTHORITY TO ISSUE REGULATIONS.—The

Secretary may issue regulations to establish the

terms and conditions relating to the flexible and

innovative financing provisions referred to in

clause (i).

―(II) TERMS AND CONDITIONS IN ABSENCE OF

REGULATIONS.—If the Secretary does not issue

regulations under subclause (I), the terms and

conditions relating to the flexible and innovative

financing provisions referred to in clause (i) shall

be consistent with—

―(aa) agreements entered into by the

Department under section 202(c)(8) before the

date of enactment of the American Energy and

Infrastructure Jobs Act of 2012; or

―(bb) regulations of the Department of the

Interior relating to flexible financing

contained in part 170 of title 25, Code of

Federal Regulations, as in effect on the date of

enactment of such Act.

―(3) DISCRETIONARY AND COMPETITIVE GRANTS.—

Notwithstanding any other provision of law, an Indian tribe shall

be eligible to directly apply for and receive the discretionary and

competitive grants made available under transportation

programs that States or political subdivisions of States are

eligible to apply for and receive.

―(4) TERMS.—A funding agreement shall set forth—

―(A) terms that generally identify the programs,

services, functions, and activities (or portions thereof) to be

performed or administered by the Indian tribe; and

―(B) for items identified in subparagraph (A)—

―(i) the general budget category assigned;

―(ii) the funds to be provided, including those funds

to be provided on a recurring basis;

―(iii) the time and method of transfer of the funds;

―(iv) the responsibilities of the Secretary and the

Page | 26 136703.1

shall be eligible to directly apply for and receive the

discretionary and competitive grants made available under

transportation programs that States or political

subdivisions of States are eligible to apply for and receive.

―(4) TERMS.—A funding agreement shall set forth—

―(A) terms that generally identify the programs,

services, functions, and activities (or portions thereof)

to be performed or administered by the Indian tribe;

and

―(B) for items identified in subparagraph (A)—

―(i) the general budget category assigned;

―(ii) the funds to be provided, including those

funds to be provided on a recurring basis;

―(iii) the time and method of transfer of the

funds;

―(iv) the responsibilities of the Secretary and

the Indian tribe; and

―(v) any other provision agreed to by the

Indian tribe and the Secretary.

―(5) SUBSEQUENT FUNDING AGREEMENTS.—

―(A) APPLICABILITY OF EXISTING AGREEMENT.—

Absent notification from an Indian tribe that the

Indian tribe is withdrawing from or retroceding the

operation of one or more programs, services, functions,

or activities (or portions thereof) identified in a funding

agreement, or unless otherwise agreed to by the

parties, each funding agreement shall remain in full

force and effect until a subsequent funding agreement

is executed.

―(B) EFFECTIVE DATE OF SUBSEQUENT

AGREEMENT.—The terms of the subsequent funding

agreement shall be retroactive to the end of the term of

the preceding funding agreement.

―(6) CONSENT OF INDIAN TRIBE REQUIRED.—The

Secretary shall not revise, amend, or require additional

terms in a new or subsequent funding agreement without

the consent of the Indian tribe that is subject to the

agreement unless such terms are required by Federal law.

Indian tribe; and

―(v) any other provision agreed to by the Indian

tribe and the Secretary.

―(5) SUBSEQUENT FUNDING AGREEMENTS.—

―(A) APPLICABILITY OF EXISTING AGREEMENT.—Absent

notification from an Indian tribe that the Indian tribe is

withdrawing from or retroceding the operation of one or

more programs, services, functions, or activities (or portions

thereof) identified in a funding agreement, or unless

otherwise agreed to by the parties, each funding agreement

shall remain in full force and effect until a subsequent

funding agreement is executed.

―(B) EFFECTIVE DATE OF SUBSEQUENT AGREEMENT.—

The terms of the subsequent funding agreement shall be

retroactive to the end of the term of the preceding funding

agreement.

―(6) CONSENT OF INDIAN TRIBE REQUIRED.—The Secretary

shall not revise, amend, or require additional terms in a new or

subsequent funding agreement without the consent of the Indian

tribe that is subject to the agreement unless such terms are

required by Federal law.

―(e) GENERAL PROVISIONS.—

―(1) REDESIGN AND CONSOLIDATION.—

―(A) IN GENERAL.—An Indian tribe, in any manner that

the Indian tribe considers to be in the best interest of the

Indian community being served, may—

―(i) redesign or consolidate programs, services,

functions, and activities (or portions thereof) included in

a funding agreement; and

―(ii) reallocate or redirect funds for such programs,

services, functions, and activities (or portions thereof), if

the funds are—

―(I) expended on projects identified in a

transportation improvement program approved by

the Secretary; and

―(II) used in accordance with appropriations

Acts and other applicable statutory limitations.

―(B) EXCEPTION.—Notwithstanding subparagraph (A),

Page | 27 136703.1

―(e) GENERAL PROVISIONS.—

―(1) REDESIGN AND CONSOLIDATION.—

―(A) IN GENERAL.—An Indian tribe, in any

manner that the Indian tribe considers to be in the

best interest of the Indian community being served,

may—

―(i) redesign or consolidate programs,

services, functions, and activities (or portions

thereof) included in a funding agreement; and

―(ii) reallocate or redirect funds for such

programs, services, functions, and activities (or

portions thereof), if the funds are—

―(I) expended on projects identified in a

transportation improvement program

approved by the Secretary; and

―(II) used in accordance with

appropriations Acts and other applicable

statutory limitations.

―(B) EXCEPTION.—Notwithstanding subparagraph

(A), if, pursuant to subsection (d), an Indian tribe

receives a discretionary or competitive grant from the

Secretary or receives State apportioned funds, the

Indian tribe shall use the funds for the purpose for

which the funds were originally authorized.

―(2) RETROCESSION.—


―(i) AUTHORITY OF INDIAN TRIBES.—An

Indian tribe may retrocede (fully or partially) to

the Secretary programs, services, functions, or

activities (or portions thereof) included in a

compact or funding agreement.

―(ii) REASSUMPTION OF REMAINING FUNDS.—

Following a retrocession described in clause (i),

the Secretary may—

―(I) reassume the remaining funding

associated with the retroceded programs,

functions, services, and activities (or portions

thereof) included in the applicable compact or

if, pursuant to subsection (d), an Indian tribe receives a

discretionary or competitive grant from the Secretary or

receives State apportioned funds, the Indian tribe shall use

the funds for the purpose for which the funds were originally

authorized.

―(2) RETROCESSION.—


―(i) AUTHORITY OF INDIAN TRIBES.—An Indian

tribe may retrocede (fully or partially) to the Secretary

programs, services, functions, or activities (or portions

thereof) included in a compact or funding agreement.

―(ii) REASSUMPTION OF REMAINING FUNDS.—

Following a retrocession described in clause (i), the

Secretary may—

―(I) reassume the remaining funding

associated with the retroceded programs, functions,

services, and activities (or portions thereof)

included in the applicable compact or funding

agreement;

―(II) out of such remaining funds, transfer

funds associated with Department of Interior

programs, services, functions, or activities (or

portions thereof) to the Secretary of the Interior to

carry out transportation services provided by the

Secretary of the Interior; and

―(III) distribute funds not transferred under

subclause (II) in accordance with applicable law.

―(iii) CORRECTION OF PROGRAMS.—If the Secretary

makes a finding under subsection (f)(2)(B) and no funds

are available under subsection (f)(2)(A)(ii), the

Secretary shall not be required to provide additional

funds to complete or correct any programs, functions, or

activities (or portions thereof).

―(B) EFFECTIVE DATE.—Unless the Indian tribe rescinds

a request for retrocession, the retrocession shall become

effective within the timeframe specified by the parties in the

compact or funding agreement. In the absence of such a

specification, the retrocession shall become effective on—

Page | 28 136703.1

funding agreement;

―(II) out of such remaining funds,

transfer funds associated with Department of

Interior programs, services, functions, or

activities (or portions thereof) to the

Secretary of the Interior to carry out

transportation services provided by the

Secretary of the Interior; and

―(III) distribute funds not transferred

under subclause (II) in accordance with

applicable law.

―(iii) CORRECTION OF PROGRAMS.—If the

Secretary makes a finding under subsection

(f)(2)(B) and no funds are available under

subsection (f)(2)(A)(ii), the Secretary shall not be

required to provide additional funds to complete

or correct any programs, functions, or activities

(or portions thereof).

―(B) EFFECTIVE DATE.—Unless the Indian tribe

rescinds a request for retrocession, the retrocession

shall become effective within the timeframe specified

by the parties in the compact or funding agreement. In

the absence of such a specification, the retrocession

shall become effective on—

―(i) the earlier of—

―(I) 1 year after the date of submission of

the request; or

―(II) the date on which the funding

agreement expires; or

―(ii) such date as may be mutually agreed

upon by the parties and, with respect to

Department of the Interior programs, functions,

services, and activities (or portions thereof), the

Secretary of the Interior.

―(f) PROVISIONS RELATING TO THE SECRETARY.—

―(1) DECISIONMAKER.—A decision that constitutes a

final agency action and relates to an appeal of the rejection

of a final offer by the Department shall be made either—

―(i) the earlier of—

―(I) 1 year after the date of submission of the

request; or

―(II) the date on which the funding agreement

expires; or

―(ii) such date as may be mutually agreed upon by

the parties and, with respect to Department of the

Interior programs, functions, services, and activities (or

portions thereof), the Secretary of the Interior.

―(f) PROVISIONS RELATING TO THE SECRETARY.—

―(1) DECISIONMAKER.—A decision that constitutes a final

agency action and relates to an appeal of the rejection of a final

offer by the Department shall be made either—

―(A) by an official of the Department who holds a

position at a higher organizational level within the

Department than the level of the departmental agency in

which the decision that is the subject of the appeal was

made; or

―(B) by an administrative judge.

―(2) TERMINATION OF COMPACT OR FUNDING AGREEMENT.—

―(A) AUTHORITY TO TERMINATE.—

―(i) PROVISION TO BE INCLUDED IN COMPACT OR

FUNDING AGREEMENT.—A compact or funding

agreement shall include a provision authorizing the

Secretary, if the Secretary makes a finding described in

subparagraph (B), to—

―(I) terminate the compact or funding

agreement (or a portion thereof); and

―(II) reassume the remaining funding

associated with the reassumed programs,

functions, services, and activities included in the

compact or funding agreement.

―(ii) TRANSFERS OF FUNDS.—Out of any funds

reassumed under clause (i)(II), the Secretary may

transfer the funds associated with Department of the

Interior programs, functions, services, and activities (or

portions thereof) to the Secretary of the Interior to

provide continued transportation services in accordance

Page | 29 136703.1

―(A) by an official of the Department who holds a

position at a higher organizational level within the

Department than the level of the departmental agency

in which the decision that is the subject of the appeal

was made; or

―(B) by an administrative judge.

―(2) TERMINATION OF COMPACT OR FUNDING

AGREEMENT.—

―(A) AUTHORITY TO TERMINATE.—

―(i) PROVISION TO BE INCLUDED IN COMPACT

OR FUNDING AGREEMENT.—A compact or funding

agreement shall include a provision authorizing

the Secretary, if the Secretary makes a finding

described in subparagraph (B), to—

―(I) terminate the compact or funding

agreement (or a portion thereof); and

―(II) reassume the remaining funding

associated with the reassumed programs,

functions, services, and activities included in

the compact or funding agreement.

―(ii) TRANSFERS OF FUNDS.—Out of any funds

reassumed under clause (i)(II), the Secretary may

transfer the funds associated with Department of

the Interior programs, functions, services, and

activities (or portions thereof) to the Secretary of

the Interior to provide continued transportation

services in accordance with applicable law.

―(B) FINDINGS RESULTING IN TERMINATION.—The

finding referred to in subparagraph (A) is a specific

finding of—

―(i) imminent jeopardy to a trust asset,

natural resources, or public health and safety that

is caused by an act or omission of the Indian tribe

and that arises out of a failure to carry out the

compact or funding agreement, as determined by

the Secretary; or

―(ii) gross mismanagement with respect to

funds or programs transferred to the Indian tribe

with applicable law.

―(B) FINDINGS RESULTING IN TERMINATION.—The

finding referred to in subparagraph (A) is a specific finding

of—

―(i) imminent jeopardy to a trust asset, natural

resources, or public health and safety that is caused by

an act or omission of the Indian tribe and that arises

out of a failure to carry out the compact or funding

agreement, as determined by the Secretary; or

―(ii) gross mismanagement with respect to funds or

programs transferred to the Indian tribe under the

compact or funding agreement, as determined by the

Secretary in consultation with the Inspector General of

the Department, as appropriate.

―(C) PROHIBITION.—The Secretary shall not terminate a

compact or funding agreement (or portion thereof) unless—

―(i) the Secretary has first provided written notice

and a hearing on the record to the Indian tribe that is

subject to the compact or funding agreement; and

―(ii) the Indian tribe has not taken corrective action

to remedy the mismanagement of funds or programs or

the imminent jeopardy to a trust asset, natural

resource, or public health and safety.

―(D) EXCEPTION.—

―(i) IN GENERAL.—Notwithstanding subparagraph

(C), the Secretary, upon written notification to an

Indian tribe that is subject to a compact or funding

agreement, may immediately terminate the compact or

funding agreement (or portion thereof) if—

―(I) the Secretary makes a finding of imminent

substantial and irreparable jeopardy to a trust

asset, natural resource, or public health and safety;

and

―(II) the jeopardy arises out of a failure to

carry out the compact or funding agreement.

―(ii) HEARINGS.—If the Secretary terminates a

compact or funding agreement (or portion thereof)

under clause (i), the Secretary shall provide the Indian

Page | 30 136703.1

under the compact or funding agreement, as

determined by the Secretary in consultation with

the Inspector General of the Department, as

appropriate.

―(C) PROHIBITION.—The Secretary shall not

terminate a compact or funding agreement (or portion

thereof) unless—

―(i) the Secretary has first provided written

notice and a hearing on the record to the Indian

tribe that is subject to the compact or funding

agreement; and

―(ii) the Indian tribe has not taken corrective

action to remedy the mismanagement of funds or

programs or the imminent jeopardy to a trust

asset, natural resource, or public health and

safety.

―(D) EXCEPTION.—

―(i) IN GENERAL.—Notwithstanding

subparagraph (C), the Secretary, upon written

notification to an Indian tribe that is subject to a

compact or funding agreement, may immediately

terminate the compact or funding agreement (or

portion thereof) if—

―(I) the Secretary makes a finding of

imminent substantial and irreparable

jeopardy to a trust asset, natural resource, or

public health and safety; and

―(II) the jeopardy arises out of a failure

to carry out the compact or funding

agreement.

―(ii) HEARINGS.—If the Secretary terminates

a compact or funding agreement (or portion

thereof) under clause (i), the Secretary shall

provide the Indian tribe subject to the compact or

agreement with a hearing on the record not later

than 10 days after the date of such termination.

―(E) BURDEN OF PROOF.—In any hearing or

appeal involving a decision to terminate a compact or

tribe subject to the compact or agreement with a

hearing on the record not later than 10 days after the

date of such termination.

―(E) BURDEN OF PROOF.—In any hearing or appeal

involving a decision to terminate a compact or funding

agreement (or portion thereof) under this paragraph, the

Secretary shall have the burden of proof in demonstrating by

clear and convincing evidence the validity of the grounds for

the termination.

―(g) COST PRINCIPLES.—In administering funds received under

this section, an Indian tribe shall apply cost principles under the

applicable Office of Management and Budget circular, except as

modified by section 106 of the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450j–1), other provisions of law,

or by any exemptions to applicable Office of Management and Budget

circulars subsequently granted by the Office of Management and

Budget. No other audit or accounting standards shall be required by

the Secretary. Any claim by the Federal Government against the

Indian tribe relating to funds received under a funding agreement

based on any audit conducted pursuant to this subsection shall be

subject to the provisions of section 106(f) of such Act (25 U.S.C. 450j–

1(f)).

―(h) TRANSFER OF FUNDS.—The Secretary shall provide funds

to an Indian tribe under a funding agreement in an amount equal to—

―(1) the sum of the funding that the Indian tribe would

otherwise receive for the program, function, service, or activity in

accordance with a funding formula or other allocation method

established under this title or chapter 53 of title 49; and

―(2) such additional amounts as the Secretary determines

equal the amounts that would have been withheld for the costs of

the Bureau of Indian Affairs for administration of the program or

project.

―(i) CONSTRUCTION PROGRAMS.—

―(1) STANDARDS.—Construction projects carried out under

programs administered by an Indian tribe with funds transferred

to the Indian tribe pursuant to a funding agreement entered into

under this section shall be constructed pursuant to the

construction program standards set forth in applicable

Page | 31 136703.1

funding agreement (or portion thereof) under this

paragraph, the Secretary shall have the burden of

proof in demonstrating by clear and convincing

evidence the validity of the grounds for the

termination.

―(g) COST PRINCIPLES.—In administering funds received

under this section, an Indian tribe shall apply cost principles

under the applicable Office of Management and Budget circular,

except as modified by section 106 of the Indian Self-

Determination and Education Assistance Act (25 U.S.C. 450j–1),

other provisions of law, or by any exemptions to applicable

Office of Management and Budget circulars subsequently

granted by the Office of Management and Budget. No other

audit or accounting standards shall be required by the

Secretary. Any claim by the Federal Government against the

Indian tribe relating to funds received under a funding

agreement based on any audit conducted pursuant to this

subsection shall be subject to the provisions of section 106(f) of

such Act (25 U.S.C. 450j–1(f)).

―(h) TRANSFER OF FUNDS.—The Secretary shall provide

funds to an Indian tribe under a funding agreement in an

amount equal to—

―(1) the sum of the funding that the Indian tribe would

otherwise receive for the program, function, service, or

activity in accordance with a funding formula or other

allocation method established under this title or chapter 53

of title 49; and

―(2) such additional amounts as the Secretary

determines equal the amounts that would have been

withheld for the costs of the Bureau of Indian Affairs for

administration of the program or project.

―(i) CONSTRUCTION PROGRAMS.—

―(1) STANDARDS.—Construction projects carried out

under programs administered by an Indian tribe with funds

transferred to the Indian tribe pursuant to a funding

agreement entered into under this section shall be

constructed pursuant to the construction program

standards set forth in applicable regulations or as

regulations or as specifically approved by the Secretary (or the

Secretary‘s designee).

―(2) MONITORING.—Construction programs shall be

monitored by the Secretary in accordance with applicable

regulations.

―(j) FACILITATION.—

―(1) SECRETARIAL INTERPRETATION.—Except as otherwise

provided by law, the Secretary shall interpret all Federal laws,

Executive orders, and regulations in a manner that will

facilitate—

―(A) the inclusion of programs, services, functions, and

activities (or portions thereof) and funds associated

therewith, in compacts and funding agreements; and

―(B) the implementation of the compacts and funding

agreements.

―(2) REGULATION WAIVER.—

―(A) IN GENERAL.—An Indian tribe may submit to the

Secretary a written request to waive application of a

regulation promulgated under this section with respect to a

compact or funding agreement. The request shall identify

the regulation sought to be waived and the basis for the

request.

―(B) APPROVALS AND DENIALS.—

―(i) IN GENERAL.—Not later than 90 days after the

date of receipt of a written request under subparagraph

(A), the Secretary shall approve or deny the request in

writing.

―(ii) DENIALS.—The Secretary may deny a request

under clause (i) only if the Secretary finds that the

identified language in the regulation may not be waived

because the waiver is prohibited by Federal law.

―(iii) DEEMED APPROVAL.—If the Secretary does not

approve or deny a request submitted under

subparagraph (A) on or before the last day of the 90-day

period referred to in clause (i), the request shall be

deemed approved.

―(iv) FINALITY OF DECISIONS.—A decision by the

Secretary under this subparagraph shall be final for the

Page | 32 136703.1

specifically approved by the Secretary (or the Secretary‘s

designee).

―(2) MONITORING.—Construction programs shall be

monitored by the Secretary in accordance with applicable

regulations.

―(j) FACILITATION.—

―(1) SECRETARIAL INTERPRETATION.—Except as

otherwise provided by law, the Secretary shall interpret all

Federal laws, Executive orders, and regulations in a

manner that will facilitate—

―(A) the inclusion of programs, services, functions,

and activities (or portions thereof) and funds

associated therewith, in compacts and funding

agreements; and

―(B) the implementation of the compacts and

funding agreements.

―(2) REGULATION WAIVER.—

―(A) IN GENERAL.—An Indian tribe may submit to

the Secretary a written request to waive application of

a regulation promulgated under this section with

respect to a compact or funding agreement. The

request shall identify the regulation sought to be

waived and the basis for the request.

―(B) APPROVALS AND DENIALS.—

―(i) IN GENERAL.—Not later than 90 days

after the date of receipt of a written request under

subparagraph (A), the Secretary shall approve or

deny the request in writing.

―(ii) DENIALS.—The Secretary may deny a

request under clause (i) only if the Secretary finds

that the identified language in the regulation may

not be waived because the waiver is prohibited by

Federal law.

―(iii) DEEMED APPROVAL.—If the Secretary

does not approve or deny a request submitted

under subparagraph (A) on or before the last day

of the 90-day period referred to in clause (i), the

request shall be deemed approved.

Department.

―(k) DISCLAIMERS.—

―(1) EXISTING AUTHORITY.—Notwithstanding any other

provision of law, upon the election of an Indian tribe, the

Secretary shall—

―(A) maintain current Federal Highway Administration

Indian reservation roads program and funding agreements;

or

―(B) enter into new agreements under the authority of

section 202(c)(8).

―(2) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in

this section may be construed to impair or diminish the authority

of the Secretary under section 202(c)(8).

―(l) APPLICABILITY OF INDIAN SELF-DETERMINATION AND

EDUCATION ASSISTANCE ACT.—Except to the extent in conflict

with this section (as determined by the Secretary), the following

provisions of the Indian Self-Determination and Education Assistance

Act shall apply to compact and funding agreements (except that

references to the Secretary of the Interior in such provisions shall

treated as a references to the Secretary of Transportation):

―(1) Subsections (a), (b), (d), (g), and (h) of section 506 of such

Act (25 U.S.C. 458aaa–5), relating to general provisions.

―(2) Subsections (b) through (e) and (g) of section 507 of such

Act (25 U.S.C.458aaa–6), relating to provisions relating to the

Secretary of Health and Human Services.

―(3) Subsections (a), (b), (d), (e), (g), (h), (i), and (k) of section

508 of such Act (25 U.S.C. 458aaa–7), relating to transfer of

funds.

―(4) Section 510 of such Act (25 U.S.C. 458aaa–9), relating to

Federal procurement laws and regulations.

―(5) Section 511 of such Act (25 U.S.C. 458aaa–10), relating

to civil actions.

―(6) Subsections (a)(1), (a)(2), and (c) through (f) of section

512 of such Act (25 U.S.C. 458aaa–11), relating to facilitation,

except that subsection (c)(1) of that section shall be applied by

substituting ‗transportation facilities and other facilities‘ for

‗school buildings, hospitals, and other facilities‘.

―(7) Subsections (a) and (b) of section 515 of such Act (25

Page | 33 136703.1

―(iv) FINALITY OF DECISIONS.—A decision by

the Secretary under this subparagraph shall be

final for the Department.

―(k) DISCLAIMERS.—

―(1) EXISTING AUTHORITY.—Notwithstanding any other

provision of law, upon the election of an Indian tribe, the

Secretary shall—

―(A) maintain current Federal Highway

Administration Indian reservation roads program and

funding agreements; or

―(B) enter into new agreements under the

authority of section 202(c)(8).

―(2) LIMITATION ON STATUTORY CONSTRUCTION.—

Nothing in this section may be construed to impair or

diminish the authority of the Secretary under section

202(c)(8).

―(l) APPLICABILITY OF INDIAN SELF-DETERMINATION

AND EDUCATION ASSISTANCE ACT.—Except to the extent in

conflict with this section (as determined by the Secretary), the

following provisions of the Indian Self-Determination and

Education Assistance Act shall apply to compact and funding

agreements (except that references to the Secretary of the

Interior in such provisions shall treated as a references to the

Secretary of Transportation):

―(1) Subsections (a), (b), (d), (g), and (h) of section 506

of such Act (25 U.S.C. 458aaa–5), relating to general

provisions.

―(2) Subsections (b) through (e) and (g) of section 507 of

such Act (25 U.S.C.458aaa–6), relating to provisions

relating to the Secretary of Health and Human Services.

―(3) Subsections (a), (b), (d), (e), (g), (h), (i), and (k) of

section 508 of such Act (25 U.S.C. 458aaa–7), relating to

transfer of funds.

―(4) Section 510 of such Act (25 U.S.C. 458aaa–9),

relating to Federal procurement laws and regulations.


relating to civil actions.

―(6) Subsections (a)(1), (a)(2), and (c) through (f) of

U.S.C. 458aaa–14), relating to disclaimers.

―(8) Subsections (a) and (b) of section 516 of such Act (25

U.S.C. 458aaa–15), relating to application of title I provisions.

―(9) Section 518 of such Act (25 U.S.C. 458aaa–17), relating

to appeals.

―(m) DEFINITIONS.—

―(1) IN GENERAL.—In this section, the following definitions

apply (except as otherwise expressly provided):

―(A) COMPACT.—The term ‗compact‘ means a compact

between the Secretary and an Indian tribe entered into

under subsection (c).

―(B) DEPARTMENT.—The term ‗Department‘ means the

Department of Transportation.

―(C) ELIGIBLE INDIAN TRIBE.—The term ‗eligible Indian

tribe‘ means an Indian tribe that is eligible to participate in

the program, as determined under subsection (b).

―(D) FUNDING AGREEMENT.—The term ‗funding

agreement‘ means a funding agreement between the

Secretary and an Indian tribe entered into under subsection

(d).

―(E) INDIAN TRIBE.—The term ‗Indian tribe‘ means any

Indian or Alaska Native tribe, band, nation, pueblo, village,

or community that the Secretary of the Interior

acknowledges to exist as an Indian tribe under the Federally

Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a). In

any case in which an Indian tribe has authorized another

Indian tribe, an inter-tribal consortium, or a tribal

organization to plan for or carry out programs, services,

functions, or activities (or portions thereof) on its behalf

under this part, the authorized Indian tribe, inter-tribal

consortium, or tribal organization shall have the rights and

responsibilities of the authorizing Indian tribe (except as

otherwise provided in the authorizing resolution or in this

title). In such event, the term ‗Indian tribe‘ as used in this

part shall include such other authorized Indian tribe, inter-

tribal consortium, or tribal organization.

―(F) PROGRAM.—The term ‗program‘ means the tribal

transportation self-governance program established under

Page | 34 136703.1

section 512 of such Act (25 U.S.C. 458aaa–11), relating to

facilitation, except that subsection (c)(1) of that section

shall be applied by substituting ‗transportation facilities

and other facilities‘ for ‗school buildings, hospitals, and

other facilities‘.

―(7) Subsections (a) and (b) of section 515 of such Act

(25 U.S.C. 458aaa–14), relating to disclaimers.

―(8) Subsections (a) and (b) of section 516 of such Act

(25 U.S.C. 458aaa–15), relating to application of title I

provisions.


relating to appeals.

―(m) DEFINITIONS.—

―(1) IN GENERAL.—In this section, the following

definitions apply (except as otherwise expressly provided):

―(A) COMPACT.—The term ‗compact‘ means a

compact between the Secretary and an Indian tribe

entered into under subsection (c).

―(B) DEPARTMENT.—The term ‗Department‘

means the Department of Transportation.

―(C) ELIGIBLE INDIAN TRIBE.—The term ‗eligible

Indian tribe‘ means an Indian tribe that is eligible to

participate in the program, as determined under

subsection (b).

―(D) FUNDING AGREEMENT.—The term ‗funding

agreement‘ means a funding agreement between the

Secretary and an Indian tribe entered into under

subsection (d).

―(E) INDIAN TRIBE.—The term ‗Indian tribe‘

means any Indian or Alaska Native tribe, band, nation,

pueblo, village, or community that the Secretary of the

Interior acknowledges to exist as an Indian tribe under

the Federally Recognized Indian Tribe List Act of 1994

(25 U.S.C. 479a). In any case in which an Indian tribe

has authorized another Indian tribe, an inter-tribal

consortium, or a tribal organization to plan for or carry

out programs, services, functions, or activities (or

portions thereof) on its behalf under this part, the

this section.

―(G) SECRETARY.—The term ‗Secretary‘ means the

Secretary of Transportation.

―(H) TRANSPORTATION PROGRAMS.—The term

‗transportation programs‘ means all programs administered

or financed by the Department under this title and chapter

53 of title 49.

―(2) APPLICABILITY OF OTHER DEFINITIONS.—In this section,

the definitions set forth in sections 4 and 505 of the Indian Self-

Determination and Education Assistance Act (25 U.S.C. 450b;

458aaa) apply, except as otherwise expressly provided in this

section.

―(n) REGULATIONS.—

―(1) IN GENERAL.—

―(A) PROMULGATION.—Not later than 90 days after the

date of enactment of the American Energy and

Infrastructure Jobs Act of 2012, the Secretary shall initiate

procedures under subchapter III of chapter 5 of title 5 to

negotiate and promulgate such regulations as are necessary

to carry out this section.

―(B) PUBLICATION OF PROPOSED REGULATIONS.—

Proposed regulations to implement this section shall be

published in the Federal Register by the Secretary not later

than 21 months after such date of enactment.

―(C) EXPIRATION OF AUTHORITY.—The authority to

promulgate regulations under this paragraph shall expire 30

months after such date of enactment.

―(D) EXTENSION OF DEADLINES.—A deadline set forth in

subparagraph (B) or (C) may be extended up to 180 days if

the negotiated rulemaking committee referred to in

paragraph (2) concludes that the committee cannot meet the

deadline and the Secretary so notifies the appropriate

committees of Congress.

―(2) COMMITTEE.—

―(A) IN GENERAL.—A negotiated rulemaking committee

established pursuant to section 565 of title 5 to carry out this

subsection shall have as its members only Federal and tribal

government representatives, a majority of whom shall be

Page | 35 136703.1

authorized Indian tribe, inter-tribal consortium, or

tribal organization shall have the rights and

responsibilities of the authorizing Indian tribe (except

as otherwise provided in the authorizing resolution or

in this title). In such event, the term ‗Indian tribe‘ as

used in this part shall include such other authorized

Indian tribe, inter-tribal consortium, or tribal

organization.

―(F) PROGRAM.—The term ‗program‘ means the

tribal transportation self-governance program

established under this section.

―(G) SECRETARY.—The term ‗Secretary‘ means the

Secretary of Transportation.

―(H) TRANSPORTATION PROGRAMS.—The term

‗transportation programs‘ means all programs

administered or financed by the Department under

this title and chapter 53 of title 49.

―(2) APPLICABILITY OF OTHER DEFINITIONS.—In this

section, the definitions set forth in sections 4 and 505 of the

Indian Self-Determination and Education Assistance Act

(25 U.S.C. 450b; 458aaa) apply, except as otherwise

expressly provided in this section.

―(n) REGULATIONS.—

―(1) IN GENERAL.—

―(A) PROMULGATION.—Not later than 90 days

after the date of enactment of the American Energy

and Infrastructure Jobs Act of 2012, the Secretary

shall initiate procedures under subchapter III of

chapter 5 of title 5 to negotiate and promulgate such

regulations as are necessary to carry out this section.

―(B) PUBLICATION OF PROPOSED REGULATIONS.—

Proposed regulations to implement this section shall be

published in the Federal Register by the Secretary not

later than 21 months after such date of enactment.

―(C) EXPIRATION OF AUTHORITY.—The authority

to promulgate regulations under this paragraph shall

expire 30 months after such date of enactment.

―(D) EXTENSION OF DEADLINES.—A deadline set

nominated by and be representatives of Indian tribes with

funding agreements under this title.

―(B) REQUIREMENTS.—The committee shall confer with,

and accommodate participation by, representatives of Indian

tribes, inter-tribal consortia, tribal organizations, and

individual tribal members.

―(C) ADAPTATION OF PROCEDURES.—The Secretary shall

adapt the negotiated rulemaking procedures to the unique

context of self-governance and the government-to-

government relationship between the United States and

Indian tribes.

―(3) EFFECT.—The lack of promulgated regulations shall not

limit the effect of this section.

―(4) EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE,

AND RULES.—Unless expressly agreed to by the participating

Indian tribe in the compact or funding agreement, the

participating Indian tribe shall not be subject to any agency

circular, policy, manual, guidance, or rule adopted by the

Department of Transportation, except regulations promulgated

under this section.‖.

(b) CLERICAL AMENDMENT.—The analysis for such chapter is

amended by inserting after the item relating to section 206 the

following:

―207. Tribal transportation self-governance program.‖.

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forth in subparagraph (B) or (C) may be extended up to

180 days if the negotiated rulemaking committee

referred to in paragraph (2) concludes that the

committee cannot meet the deadline and the Secretary

so notifies the appropriate committees of Congress.

―(2) COMMITTEE.—

―(A) IN GENERAL.—A negotiated rulemaking

committee established pursuant to section 565 of title

5 to carry out this subsection shall have as its

members only Federal and tribal government

representatives, a majority of whom shall be

nominated by and be representatives of Indian tribes

with funding agreements under this title.

―(B) REQUIREMENTS.—The committee shall confer

with, and accommodate participation by,

representatives of Indian tribes, inter-tribal consortia,

tribal organizations, and individual tribal members.

―(C) ADAPTATION OF PROCEDURES.—The

Secretary shall adapt the negotiated rulemaking

procedures to the unique context of self-governance

and the government-to-government relationship

between the United States and Indian tribes.

―(3) EFFECT.—The lack of promulgated regulations

shall not limit the effect of this section.

―(4) EFFECT OF CIRCULARS, POLICIES, MANUALS,

GUIDANCE, AND RULES.—Unless expressly agreed to by the

participating Indian tribe in the compact or funding

agreement, the participating Indian tribe shall not be

subject to any agency circular, policy, manual, guidance, or

rule adopted by the Department of Transportation, except

regulations promulgated under this section.‖.

(b) CLERICAL AMENDMENT.—The analysis for such

chapter is amended by inserting after the item relating to

section 206 the following:

―207. Tribal transportation self-governance program.‖.

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4. Ease the transfer of Federal Aid funds for Tribal Transportation Projects. Eliminate current barriers to transfers of federal-aid funds

to Tribal Nations by requiring the BIA or FHWA to award State administered federal-aid funds to Tribes under their TTP agreements. If

a Tribe and State prefer, the State may make the funding award directly to the Tribe under an appropriate award instrument that respects

tribal sovereignty and government-to-government nature of the agreement.

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amendments

Sections 202(b)(6) (A) and (7)(A) of title 23, United States Code,

are amended by striking ―this chapter and section 125(e)‖ and

―this chapter,‖ respectively, and inserting ―title 23 or chapter 53

of title 39, United States Code‖ in lieu thereof.

(6) Contract and agreements with Indian tribes—

(A) In general.--Notwithstanding any other provision of law

or any interagency agreement, program guideline, manual, or

23 U.S.C. § 202(b)(6)(A) is amended to read:

(6) Contracts and agreements with Indian tribes.—

(A) In general.--Notwithstanding any other provision of law or any

interagency agreement, program guideline, manual, or policy directive, all

Rationale: To assure the maximum program benefits of federal transportation funding by reducing transaction costs, this section creates a Tribal Self

Governance Program that approximates the program contained in Title V of the Indian Self-Determination and Education Assistance Act (ISDEAA), Pub. L.

93-638, to all Federal transportation programs serving tribes and all funding agencies within the U.S. Department of Transportation (DOT). The Self-

Governance Program of the ISDEAA has significantly improved the effectiveness of programs the U.S. Department of Health and Human Services and the

Department of the Interior administer for the benefit of Indians. This section will extend many of those same benefits of the ISDEAA to the transportation

programs serving tribes and administered by modal administrations within the DOT.

This section—reported to the House in 2012 as Sec. 1506 of HR 7— adopts the same language used in other sections of the ISDEAA to require the Secretary

of Transportation to create a Tribal Self-Governance Program and requires the Secretary of Transportation to enter into a self-governance agreement – at the

request of a Tribe – for any program authorized under either Title 23 or Chapter 53 of Title 49 of the U.S. Code. This would mean that Tribes would be able to

obtain all of their transportation funds (including not only TTP funds, but also transit, Federal-aid and other DOT funds) under a DOT self-governance

agreement. By authorizing Tribes to elect to use these ISDEAA funding agreements for all transportation funds (and requiring DOT to respect that election),

and thereby requiring Tribes to meet only a single set of grant and administrative requirements, these amendments should significantly streamline Tribal

efforts to obtain and administer such funds. This section also preserves the option currently available to Tribes to enter into FHWA TTP Program Agreements

and referenced Funding Agreements with the Secretary of Transportation, and tribes electing to do so will continue to be able to use those existing agreements.

Page | 38 136703.1

policy directive, all funds made available through the

Secretary of the Interior under title 23 or chapter 53 of title 49,

United States Code for tribal transportation facilities to pay

for the costs of programs, services, functions, and activities, or

portions of programs, services, functions, or activities that are

specifically or functionally related to the cost of planning,

research, engineering, and construction of any tribal

transportation facility shall be made available, on the 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 (25

U.S.C. 450 et seq.).

(7) Contracts and agreements with Indian tribes

(A) In general.-Notwithstanding any other provision of law

or any inter-agency agreement, program guideline, manual, or

policy directive, all funds made available to an Indian tribal

government under title 23 or chapter 53 of title 49, United

States Code for a tribal transportation facility program or

project shall be made available, on the request of the Indian

tribal government, to the Indian tribal government for use in

carrying out, in accordance with the Indian Self-Determination

and Education Assistance Act (25 U.S.C. 450 et seq.),

contracts and agreements for the planning research, design,

engineering, construction, and maintenance relating to the

program or project.

funds made available through the Secretary of the Interior under this

chapter and section 125(e) title 23 or chapter 53 of title 49, United States

Code for tribal transportation facilities to pay for the costs of programs,

services, functions, and activities, or portions of programs, services,

functions, or activities that are specifically or functionally related to the

cost of planning, research, engineering, and construction of any tribal

transportation facility shall be made available, on the 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 (25 U.S.C. 450 et seq.).

23 U.S.C. § 202(b)(7)(A) is amended to read:

(7) Contracts and agreements with Indian Tribes.—

(A) In general.-Notwithstanding any other provision of law or any inter-

agency agreement, program guideline, manual, or policy directive, all

funds made available to an Indian tribal government under this chapter title

23 or chapter 53 of title 49, United States Code for a tribal transportation

facility program or project shall be made available, on the request of the

Indian tribal government, to the Indian tribal government for use in

carrying out, in accordance with the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450 et seq.), contracts and

agreements for the planning research, design, engineering, construction,

and maintenance relating to the program or project.

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5. Ensure Tribal eligibility for all U.S. Transportation Department discretionary and competitive grants. Tribal governments are

increasingly gaining direct access to federal transportation grants, but this provision would ensure that Tribes have access to all

discretionary and competitive grants to increase tribal funding opportunities without increasing the overall cost of the next highway bill.

(HR7)

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amendments

(a) IN GENERAL.— At the end of Section 202 of title 23,

United States Code, create a new subsection (g) to read

as follows:

―(g) ELIGIBILITY FOR DISCRETIONARY AND COMPETITIVE

GRANTS.—Notwithstanding any other provision of law, an

Indian Tribe may directly apply for and receive from the

Secretary any discretionary or competitive grant made available

to a State or a political subdivision of a State under this title or

chapter 53 of title 49 in the same manner and under the same

circumstances as a State or a political subdivision of a State.

(b) IN GENERAL.— At the end of Section 202 of title 23, United

States Code, create a new subsection (g) to read as follows:

―(g) ELIGIBILITY FOR DISCRETIONARY AND COMPETITIVE GRANTS.—

Notwithstanding any other provision of law, and Indian Tribe may

directly apply for and receive from the Secretary any discretionary or

competitive grant made available to a State or a political subdivision

of a State under this title or chapter 53 of title 49 in the same manner

and under the same circumstances as a State or a political subdivision

of a State.

Rationale: The Secretary of Transportation has taken the position that 23 U.S.C. § 202(b)(6) and (b)(7) only authorize the transfer of funds to

tribes that are authorized under section 125(e) and chapter 2 of that title. This means that tribal governments may only access federal transportation

funds provided under other chapters of title 23 (such as funds provided under the federal aid program, the National Scenic Byways Program and

programs and grants administered by the National Highway Traffic Safety Administration) through federal and state-administered agreements that

have not been developed with tribal governments in mind and that are ill-suited to the unique legal status of tribal governments. The lack of a

simple, uniform and tribally appropriate funding agreement prevents millions of dollars in available Federal and State transportation funds from

reaching tribal populations every year. This section authorizes the Secretary of the Interior and the Secretary of Transportation to enter into direct

agreements with tribes under section 202(b)(6) and (7) to transfer all funds made available to a tribe under any provision of title 23 or chapter 53 of

title 49, United States Code, including federal aid funds that a State makes available to a tribe, National Scenic Byways Grant funds, chapter 4

safety funds and other funds that a tribe may be eligible to receive under title 23, United States Code. This change would have the effect of

requiring tribes to meet only a single set of grant and administrative requirements and would therefore significantly streamline tribal efforts to

obtain and administer such funds.

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6. Improve BIA Right-of-Way Management. Requires the BIA to update and computerize rights-of-way documentation, support Tribal

corridor management practices and pay trespass damages for BIA improperly obtained or recorded rights-of-way. Provide $10 million

per year to cover the cost of these statutory requirements.

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amendments

Section 202 of title 23, United States Code, is amended to

add a new section (b) to read:

(g) RIGHTS-OF-WAY AND CORRIDOR MANAGEMENT.—

―(A) APPLICABLE REGULATIONS—

(i) IN GENERAL.—Notwithstanding any other

provision of law (including regulations), a tribal

government that is performing a construction

projects under the authority of the Indian Self-

Determination Act, 25 U.S.C. § 450 et seq.

(including Title VII of that Act) or section 202(b) of

this title shall not be required to deposit estimated

damages in advance or to indemnify the United

States, the owners of the land, or occupants of the

land.

(ii) CRITERIA.—In accordance with the negotiated

23 U.S.C. § 202 of title 23, United States Code is amended to add a

new section (g) to read:

(g) RIGHTS-OF-WAY AND CORRIDOR MANAGEMENT.—

―(A) APPLICABLE REGULATIONS—

(i) IN GENERAL.—Notwithstanding any other provision

of law (including regulations), a tribal government that is

performing a construction projects under the authority of

the Indian Self-Determination Act, 25 U.S.C. § 450 et seq.

(including Title VII of that Act) or section 202(b) of this

title shall not be required to deposit estimated damages in

advance or to indemnify the United States, the owners of

the land, or occupants of the land.

(ii) CRITERIA.—In accordance with the negotiated

rulemaking procedure under this Act, the Secretary shall

negotiate and promulgate regulations establishing the

criteria according to which a tribal government may—

Rationale: This section would ensure that tribes would be eligible to directly apply for any grants the Department of Transportation offers to

States or State subdivisions, subject to the regular criteria of those discretionary and competitive grants. Currently, tribes cannot directly apply

for many grants like transit and safety grants (such as passenger ferry program grants, technology improvement grants, hazmat employee training

grants, and the like), grants for programs and projects. Tribes should be able to submit direct applications for these discretionary and competitive

grants.

Page | 41 136703.1

rulemaking procedure under this Act, the Secretary

shall negotiate and promulgate regulations

establishing the criteria according to which a tribal

government may—

(I) carry out the maximum

permissible functions associated with

the procurement or granting of rights-

of-way for projects eligible for

assistance under this title or chapter

53 of title 49 that the tribal

government is performing pursuant to

a contract, compact, or agreement

under the Indian Self-Determination

and Education Assistance Act (25

U.S.C. 450 et seq.) or paragraph (X);

and

(II) develop corridor management

policies.

―(B) RIGHTS-OF-WAY FOR EXISTING

ROUTES.—

―(i) IN GENERAL.—Not later than 120

days after the date of receipt of a request

from a tribal government, the Secretary of the

Interior shall provide to the tribal government

documentation of each enforceable right-of-

way for each route that, as of the date of

enactment of this paragraph—

(I) is eligible for inclusion in the

national tribal transportation facility

inventory under section 202(b); and

(I) carry out the maximum permissible

functions associated with the procurement

or granting of rights-of-way for projects

eligible for assistance under this title or

chapter 53 of title 49 that the tribal

government is performing pursuant to a

contract, compact, or agreement under the

Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450 et seq.) or

paragraph (X); and

(II) develop corridor management policies.

―(B) RIGHTS-OF-WAY FOR EXISTING ROUTES.—

―(i) IN GENERAL.—Not later than 120 days after

the date of receipt of a request from a tribal

government, the Secretary of the Interior shall

provide to the tribal government documentation of

each enforceable right-of-way for each route that, as

of the date of enactment of this paragraph—

(I) is eligible for inclusion in the national

tribal transportation facility inventory under

section 202(b); and

(II) is owned by the Bureau of Indian

Affairs or the tribal government.

―(ii) FAILURE TO LOCATE

DOCUMENTATION.—If the Secretary of the

Interior is unable to locate documentation of an

enforceable right-of-way under clause (i):

―(I) the Secretary of the Interior shall notify

Page | 42 136703.1

(II) is owned by the Bureau of Indian

Affairs or the tribal government.

―(ii) FAILURE TO LOCATE

DOCUMENTATION.—If the Secretary of

the Interior is unable to locate documentation

of an enforceable right-of-way under clause

(i):

―(I) the Secretary of the Interior shall

notify the tribal government of its

inability to locate enforceable right-

of-way under clause (i) not later than

30 days after the receipt of the request

under clause (i); and

―(II) the Secretary of the Interior

shall, not later than 120 days of the

receipt of the request under clause (i),

in consultation with the tribal

government and based on the tribal

government’s transportation

priorities, and with the tribe’s

consent, develop a schedule and a

plan for acquiring by purchase or

otherwise, enforceable right-of-way

for each eligible route; and

―(III) not later than one calendar year

after the date of receipt of the request

from the tribal government under

clause (i), the Secretary of the Interior

shall acquire, by purchase or

otherwise, an enforceable right-of-

way for each eligible route in

accordance with the schedule and

the tribal government of its inability to

locate enforceable right-of-way under clause

(i) not later than 30 days after the receipt of

the request under clause (i); and

―(II) the Secretary of the Interior shall, not

later than 120 days of the receipt of the

request under clause (i), in consultation with

the tribal government and based on the tribal

government’s transportation priorities, and

with the tribe’s consent, develop a schedule

and a plan for acquiring by purchase or

otherwise, enforceable right-of-way for each

eligible route; and

―(III) not later than one calendar year after

the date of receipt of the request from the

tribal government under clause (i), the

Secretary of the Interior shall acquire, by

purchase or otherwise, an enforceable right-

of-way for each eligible route in accordance

with the schedule and plan developed under

clause (II).

―(iii) TRIBAL AUTHORITY TO ACQUIRE

RIGHT-OF-WAY.—The tribal government that has

requested documentation under clause (i) may, at its

option, assume the responsibility of the Secretary of

the Interior under clause (ii) to acquire right-of-way

under its existing agreements issued in accordance

with the Indian Self-Determination and Education

Assistance Act (25 USC § 450 et seq.) (including

Title VII of that Act) in which case:

―(I) the costs of acquiring such right-of-way

shall be payable from funds authorized to

Page | 43 136703.1

plan developed under clause (II).

―(iii) TRIBAL AUTHORITY TO ACQUIRE

RIGHT-OF-WAY.—The tribal government

that has requested documentation under

clause (i) may, at its option, assume the

responsibility of the Secretary of the Interior

under clause (ii) to acquire right-of-way

under its existing agreements issued in

accordance with the Indian Self-

Determination and Education Assistance Act

(25 USC § 450 et seq.) (including Title VII

of that Act) in which case:

―(I) the costs of acquiring such right-

of-way shall be payable from funds

authorized to carry out this paragraph;

and

―(II) the tribal government shall not

be subject to the time limits in clause

(ii).

―(iv) LIMITATION.—In acquiring a right-

of-way under clause (ii), the Secretary of the

Interior shall not require a tribal government

to use tribal funds or funds made available to

the tribal government under this title or

chapter 53 of title 49.‖

(C) RIGHT-OF-WAY RECORDS—

(i) IN GENERAL.—Not later than 3 years after the

date of enactment of this paragraph, the Secretary of

the Interior shall complete a comprehensive national

carry out this paragraph; and

―(II) the tribal government shall not be

subject to the time limits in clause (ii).

―(iv) LIMITATION.—In acquiring a right-of-way

under clause (ii), the Secretary of the Interior shall

not require a tribal government to use tribal funds

or funds made available to the tribal government

under this title or chapter 53 of title 49.‖

(C) RIGHT-OF-WAY RECORDS—

(i) IN GENERAL.—Not later than 3 years after the date of

enactment of this paragraph, the Secretary of the Interior

shall complete a comprehensive national update of right-of-

way records for all routes that are—

(I) eligible for inclusion in the national tribal

transportation facility inventory; and

(II) owned by the Bureau of Indian Affairs or a

tribal government.

(ii) REQUIREMENTS.—In completing the update

of records under clause (i), the Secretary shall—

(I) computerize and organize all right-of-way

records; and

(II) establish a system for ensuring that

documentation of a right-of-way for a new route

owned by the Bureau of Indian Affairs or a tribal

government is promptly added to the right-of-way

records database.

Page | 44 136703.1

update of right-of-way records for all routes that

are—

(I) eligible for inclusion in the national tribal

transportation facility inventory; and

(II) owned by the Bureau of Indian Affairs or

a tribal government.

(ii) REQUIREMENTS.—In completing the

update of records under clause (i), the

Secretary shall—

(I) computerize and organize all right-of-way

records; and

(II) establish a system for ensuring that

documentation of a right-of-way for a new

route owned by the Bureau of Indian Affairs

or a tribal government is promptly added to

the right-of-way records database.

(iii) AVAILABILITY.—The Secretary shall

make each updated record under this

subparagraph available to the tribal

government on the inventory of which the

applicable route appears in any commonly

used mapping format requested by the tribal

government.

(D) AUTHORIZATION OF APPROPRIATIONS.—There is

authorized to be appropriated from the Highway Trust Fund

(other than the Mass Transit Account) $10,000,000 for each of

fiscal year 2015 through 2020 to carry out this paragraph.

(iii) AVAILABILITY.—The Secretary shall make

each updated record under this subparagraph

available to the tribal government on the inventory

of which the applicable route appears in any

commonly used mapping format requested by the

tribal government.

(D) AUTHORIZATION OF APPROPRIATIONS.—There is

authorized to be appropriated from the Highway Trust Fund

(other than the Mass Transit Account) $10,000,000 for each of

fiscal year 2015 through 2020 to carry out this paragraph.

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Rationale: The BIA has, in many cases, failed to maintain adequate records of rights-of-way the BIA acquired, disposed of, or otherwise

transferred long ago for tribal transportation facility routes. As a result, when Tribes seek to improve existing routes, they are often forced to

undertake time-consuming and costly efforts to acquire or establish rights-of-way for those routes. In addition, when tribes seek to procure

right-of-way for transportation purposes, the BIA is unsure of the regulatory requirements. To address these problems, these provisions:

Clarify that where the tribal government has assumed responsibility for the acquisition of right-of-way under a contract, compact

or agreement authorized by the Indian Self-Determination and Education Assistance Act or under an Tribal Transportation

Program Agreement with the FHWA, the tribe shall not be required to deposit estimated damages in advance or indemnify the

United States, the owners or occupants of the land;

Clarify that Indian tribal governments are authorized to assume responsibility for the maximum permissible functions

associated with the procurement and granting of right-of-way for transportation and transit projects and are authorized to

develop corridor management policies;

Require that appropriate regulations be developed to govern the procurement and granting of right-of-way for tribal

transportation projects and the development of corridor management policies during the tribal transportation negotiated

rulemaking; In addition, this provision would require the Bureau, at a tribe’s request, to provide the tribe with documentation of enforceable right-of-way for any BIA or tribally-owned route that is eligible for inclusion on that tribe’s TTP inventory as of the date of the passage of the highway legislation and, where the Bureau is unable to locate such documentation, to acquire right-of-way sufficient to support the use of the route; require the Bureau to develop a comprehensive national update of right-of-way records in a computerized database and; authorize the appropriation of $10,000,000 for each of fiscal years 2015 through 2020 to carry out these provisions.

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7. Gives Tribes the Option of Assuming NEPA Approval Authority. Authorizes but does not require Tribes to assume responsibility for

approving NEPA documents, if the Tribe is willing to provide a limited sovereign immunity waiver. At the option of the Tribe, the BIA

or FHWA can perform this function, but if a Tribe prefers to assume the NEPA responsibility itself, it will be required to provide a limited

waiver of sovereign immunity to allow for administrative challenges to the Tribe’s NEPA decision. This NEPA provision is modeled on

the successful Title V Self-Governance Program administered by the Indian Health Service.

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amendments

(a) IN GENERAL.—Section 202, subsection (b), title 23,

United States Code, is amended by adding at the end the

following:

―(8) COMPLIANCE WITH ENVIRONMENTAL LAW.—A tribal

government that has entered into a contract, compact, or

agreement pursuant to the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450 et seq.) or the

Tribal Transportation Self-Governance Program, proposed

herein as 23 U.S.C. § 207, to carry out a project under this

subsection may elect to assume all Federal responsibilities

under the National Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.), the National Historic Preservation Act

(16 U.S.C. 470 et seq.), and any related provisions of law

that would apply if the Secretary were to carry out the

applicable construction project, by adopting a resolution

that—

‗‗(A) designates a certifying officer—

‗‗(i) to represent the Indian tribe; and

‗‗(ii) to assume the status of a responsible

Federal official under those laws; and

‗‗(B) accepts the jurisdiction of the United States

courts for the purpose of enforcement of the

responsibilities of a Federal official under those

laws.‖

Add a new paragraph (8) to 23 U.S.C. 202(b) as follows:

―(8) COMPLIANCE WITH ENVIRONMENTAL LAW.—A tribal

government that has entered into a contract, compact, or

agreement pursuant to the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450 et seq.) or the Tribal

Transportation Self-Governance Program, proposed herein as 23

U.S.C. § 207, to carry out a project under this subsection may

elect to assume all Federal responsibilities under the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the

National Historic Preservation Act (16 U.S.C. 470 et seq.), and

any related provisions of law that would apply if the Secretary

were to carry out the applicable construction project, by adopting

a resolution that—

‗‗(A) designates a certifying officer—

‗‗(i) to represent the Indian tribe; and

‗‗(ii) to assume the status of a responsible

Federal official under those laws; and

‗‗(B) accepts the jurisdiction of the United States courts

for the purpose of enforcement of the responsibilities of

a Federal official under those laws.‖

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8. Funding to Establish a Tribal Infrastructure Bank. Creates a Tribal Infrastructure Bank capitalized at $10 million annually to provide

low interest loans for Tribal transportation projects.

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amendments

Chapter 6 of title 23, United States Code, is amended by adding at the end thereof the following new section:

―§ 611. TRIBAL INFRASTRUCTURE BANK. ―(a) DEFINITIONS.—In this section, terms defined in section 610(a) of this chapter have the meanings established in that section. ―(b) ESTABLISHMENT.—The Secretary shall establish a tribal infrastructure bank for making loans and providing other forms of credit assistance to a tribal government, carrying out or proposing to carry out projects eligible for assistance under this section.

―(c) FUNDING.—

―(1) SEPARATE ACCOUNTS.—

23 U.S.C. is amended to add a new section 611 to read:

―§ 611. TRIBAL INFRASTRUCTURE BANK. ―(a) DEFINITIONS.—In this section, terms defined in section 610(a) of this chapter have the meanings established in that section. ―(b) ESTABLISHMENT.—The Secretary shall establish a tribal infrastructure bank for making loans and providing other forms of credit assistance to a tribal government, carrying out or proposing to carry out projects eligible for assistance under this section.

―(c) FUNDING.—

―(1) SEPARATE ACCOUNTS.—

(A). IN GENERAL.—The tribal infrastructure bank established

Rationale: The National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) require that specific

documents be produced before federal funds – including TTP Program funds – can be used in construction projects. Under current law, tribal

governments may produce those documents, but the ultimate authority to sign the documents lies with either the BIA or the U.S. DOT.

Although in some cases the BIA reviews and signs tribally produced documents within a reasonable time period, in many cases, projects are

delayed months or even years as a result of BIA failure to timely review and approve these documents. This provision authorizes tribes, at the

tribe’s election, to assume all federal responsibilities under NEPA and NHPA, including the authority to sign required documents, if the tribe

agrees to designate a certifying officer who will assume the status of a responsible Federal official and if the Tribe agrees to subject itself to the

jurisdiction of the federal courts for suits brought to enforce the responsibilities of the responsible Federal official. This language is modeled

after a similar provision found at 25 U.S.C. 458aaa-8(a) which applies to Indian Health Service self-governance construction projects.

Page | 48 136703.1

(A). IN GENERAL.—The tribal infrastructure bank

established under this section shall maintain—

(i) a separate highway account for Federal funds contributed

to the bank under paragraph (2)(A) of this subsection; and

(ii)a separate transit account for Federal funds contributed to

the bank under paragraph (2)(B) of this subsection.

(B) PROHOBITIION.—No Federal funds contributed or

credited to an account of the tribal infrastructure bank established

under this section may be commingled with Federal funds

contributed or credited to any other account of such bank.

―(2) FUNDING.—The following sums are authorized to be

appropriated:

―(A) HIGHWAY ACCOUNT.—For the Highway Account of the tribal infrastructure bank, out of the Highway Trust Fund (other than the Mass Transit Account), $8,500,000 for

each of fiscal years 2015 through 2020.

―(B) TRANSIT ACCOUNT.—For the Transit Account of the

tribal infrastructure bank, out of the Mass Transit Account,

$1,500,000 for each of fiscal years 2015 through 2020.

―(3) CAPITAL GRANTS

―(A) HIGHWAY ACCOUNT.—Federal funds deposited

into the highway account of the tribal infrastructure bank

under paragraph (2)(A) shall constitute for purposes of this

section a capitalization grant for the highway account of the

bank.

―(B) TRANSIT ACCOUNT.—Federal funds deposited into

under this section shall maintain—

(i) a separate highway account for Federal funds contributed to the

bank under paragraph (2)(A) of this subsection; and

(ii)a separate transit account for Federal funds contributed to the

bank under paragraph (2)(B) of this subsection.

(B) PROHOBITIION.—No Federal funds contributed or credited to

an account of the tribal infrastructure bank established under this

section may be commingled with Federal funds contributed or credited

to any other account of such bank.

―(2) FUNDING.—The following sums are authorized to be

appropriated:

―(A) HIGHWAY ACCOUNT.—For the Highway Account of the tribal infrastructure bank, out of the Highway Trust Fund (other than the Mass Transit Account), $8,500,000 for each

of fiscal years 2015 through 2020.

―(B) TRANSIT ACCOUNT.—For the Transit Account of the tribal

infrastructure bank, out of the Mass Transit Account,

$1,500,000 for each of fiscal years 2015 through 2020. ―(3)

CAPITAL GRANTS

―(A) HIGHWAY ACCOUNT.—Federal funds deposited into

the highway account of the tribal infrastructure bank under

paragraph (2)(A) shall constitute for purposes of this section a

capitalization grant for the highway account of the bank.

―(B) TRANSIT ACCOUNT.—Federal funds deposited into the

transit account of the tribal infrastructure bank under paragraph

(2)(B) shall constitute for purposes of this section a capitalization

grant for the transit account of the bank.

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the transit account of the tribal infrastructure bank under

paragraph (2)(B) shall constitute for purposes of this section a

capitalization grant for the transit account of the bank.

―(d) FORMS OF ASSISTANCE.—

(1) IN GENERAL.—The tribal infrastructure bank

established under this section may make loans or provide

other forms of credit assistance to a tribal government in an

amount equal to all or a part of the cost of carrying out a

project eligible for assistance under this section.

(2) TREATMENT.—The amount of any loan or other form

of credit assistance provided for the project may be

subordinated to any other debt financing for the project.

(3) INITIAL ASSISTANCE.—Initial assistance provided

with respect to a project from Federal funds deposited into

an infrastructure bank under this section may not be made in

the form of a grant.

―(e) ELIGIBLE PROJECTS.--Subject to subsection (d), funds in the

tribal infrastructure bank established under this section may be

used only to provide assistance for—

(1) projects eligible for assistance under title 23, United

States Code and chapter 53 of title 49, United States Code;

and

(2) any other projects relating to surface transportation that

the Secretary determines to be appropriate.

―(f) RESPONSIBILITY FOR ADMINISTRATION.—The tribal

infrastructure banks shall be administered by a federally chartered

corporation.

―(d) FORMS OF ASSISTANCE.—

(1) IN GENERAL.—The tribal infrastructure bank established

under this section may make loans or provide other forms of credit

assistance to a tribal government in an amount equal to all or a part

of the cost of carrying out a project eligible for assistance under

this section.

(2) TREATMENT.—The amount of any loan or other form of

credit assistance provided for the project may be subordinated to

any other debt financing for the project.

(3) INITIAL ASSISTANCE.—Initial assistance provided with

respect to a project from Federal funds deposited into an

infrastructure bank under this section may not be made in the form

of a grant.

―(e) ELIGIBLE PROJECTS.--Subject to subsection (d), funds in the tribal

infrastructure bank established under this section may be used only to

provide assistance for—

(1) projects eligible for assistance under title 23, United States

Code and chapter 53 of title 49, United States Code; and

(2) any other projects relating to surface transportation that the

Secretary determines to be appropriate.

―(f) RESPONSIBILITY FOR ADMINISTRATION.—The tribal

infrastructure banks shall be administered by a federally chartered

corporation.

―(g) INFRASTRUCTURE BANK REQUIREMENTS. --The federally

chartered corporation shall—

―(1) ensure that the bank maintains on a continuing basis an

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―(g) INFRASTRUCTURE BANK REQUIREMENTS. --The federally

chartered corporation shall—

―(1) ensure that the bank maintains on a continuing basis an

investment grade rating on its debt, or has a sufficient level of

bond or debt financing instrument insurance, to maintain the

viability of the bank;

―(2) ensure that investment income derived from funds

deposited to an account of the bank are--

―(A) credited to the account;

―(B) available for use in providing loans and other forms

of credit assistance to projects eligible for assistance from the

account; and

―(C) invested in United States Treasury securities, bank

deposits, or such other financing instruments as the Secretary

may approve to earn interest to enhance the leveraging of

projects assisted by the bank;

―(3) ensure that any loan from the bank will bear interest at or

below market interest rates, as determined by the federally

chartered corporation, to make the project that is the subject of the

loan feasible;

―(4) ensure that repayment of any loan from the bank will

commence not later than—

(A) 5 years after the project has been completed; or

(B) in the case of a highway project, the facility has opened

to traffic, whichever is later;

―(5) set a maximum term for the repayment of loans such that

investment grade rating on its debt, or has a sufficient level of bond or

debt financing instrument insurance, to maintain the viability of the

bank;

―(2) ensure that investment income derived from funds deposited

to an account of the bank are--

―(A) credited to the account;

―(B) available for use in providing loans and other forms of

credit assistance to projects eligible for assistance from the account;

and

―(C) invested in United States Treasury securities, bank

deposits, or such other financing instruments as the Secretary may

approve to earn interest to enhance the leveraging of projects

assisted by the bank;

―(3) ensure that any loan from the bank will bear interest at or below

market interest rates, as determined by the federally chartered

corporation, to make the project that is the subject of the loan feasible;

―(4) ensure that repayment of any loan from the bank will

commence not later than—

(A) 5 years after the project has been completed; or

(B) in the case of a highway project, the facility has opened to

traffic, whichever is later;

―(5) set a maximum term for the repayment of loans such that the

Tribal Infrastructure Bank can be self-sustaining;

―(6) ensure that the term for repaying any loan will in no event

exceed 20 years after the date of the first payment on the loan; and

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the Tribal Infrastructure Bank can be self-sustaining;

―(6) ensure that the term for repaying any loan will in no

event exceed 20 years after the date of the first payment on the

loan; and

―(7) require the bank to make an annual report to the

Secretary on its status no later than September 30 of each year

and such other reports as the Secretary may require under

guidelines issued to carry out this section.

―(h) APPLICABILITY OF FEDERAL LAW.--

―(1) IN GENERAL.--The requirements of section 202(b) of this

title that would otherwise apply to funds made available to a tribal

government under section 202(b) of this title and projects assisted

with those funds shall apply to--

―(A) funds authorized to be contributed to the tribal

infrastructure bank under this section; and

―(B) projects assisted by the bank through the use of the

funds, except to the extent that the Secretary determines that

any requirement of such section is not consistent with the

objectives of this section.

―(2) REPAYMENTS.—

(A) IN GENERAL.—The requirements of this title and title

49, United States Code shall apply to repayments from non-

Federal sources to an infrastructure bank from projects assisted by

the bank.

(B) TREATMENT.—Such a repayment shall be considered to

be Federal funds.

―(7) require the bank to make an annual report to the Secretary on

its status no later than September 30 of each year and such other

reports as the Secretary may require under guidelines issued to carry

out this section.

―(h) APPLICABILITY OF FEDERAL LAW.--

―(1) IN GENERAL.--The requirements of section 202(b) of this title

that would otherwise apply to funds made available to a tribal

government under section 202(b) of this title and projects assisted with

those funds shall apply to--

―(A) funds authorized to be contributed to the tribal

infrastructure bank under this section; and

―(B) projects assisted by the bank through the use of the funds,

except to the extent that the Secretary determines that any

requirement of such section is not consistent with the objectives of

this section.

―(2) REPAYMENTS.—

(A) IN GENERAL.—The requirements of this title and title 49,

United States Code shall apply to repayments from non-Federal sources

to an infrastructure bank from projects assisted by the bank.

(B) TREATMENT.—Such a repayment shall be considered to be

Federal funds.

―(i) UNITED STATES NOT OBLIGATED.—

(1) IN GENERAL.—The deposit of Federal funds into an

infrastructure bank established under this section shall not be

construed as a commitment, guarantee, or obligation on the part of

Page | 52 136703.1

―(i) UNITED STATES NOT OBLIGATED.—

(1) IN GENERAL.—The deposit of Federal funds into an

infrastructure bank established under this section shall not be

construed as a commitment, guarantee, or obligation on the

part of the United States to any third party, nor shall any party

have any right against the United States for payment solely by

virtue of the contribution.

(2) REQUIREMENT.—Any security or debt- financing

instrument issued by the infrastructure bank shall expressly

state that the security or instrument does not constitute a

commitment, guarantee, or obligation of the United States.‖

the United States to any third party, nor shall any party have any

right against the United States for payment solely by virtue of the

contribution.

(2) REQUIREMENT.—Any security or debt- financing instrument

issued by the infrastructure bank shall expressly state that the

security or instrument does not constitute a commitment, guarantee,

or obligation of the United States.‖

Rationale: This provision creates a Tribal Infrastructure Bank modeled in part on the State Infrastructure Banks authorized by Congress in the

National Highway System Designation Act of 1995. The bank, which would be funded at a level of $10 million annually, would provide

loans and other credit enhancement device, such as guarantees for private loans, to Tribes to finance transportation projects. Eligible projects

would include projects that are otherwise eligible for assistance under title 23, United States Code or chapter 53 of title 49, United States

Code, and any other projects relating to surface transportation that the Secretary of Transportation determines to be appropriate. The bank

would charge a rate of interest on loans that is at or below market rates. The b a n k would be self-sustaining: the repayment term of loans

will be set such that funds made available when tribes repay existing loans can be ―recycled‖ into new loans. By making low interest loans

and other credit enhancement mechanisms available, the bank would give Tribes significantly increased flexibility in project selection and

financial management.

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9. Increased funding for Tribal Technical Assistance Program (TTAP). Increases funding for the TTAPs from $2.1 million to $3.6

million annually.

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amendments

Amend section 202(a)(7) of title 23, United States

Code, to read as follows:

(7) TRIBAL TECHNICAL ASSISTANCE CENTERS.—The

Secretary of the Interior shall reserve amounts from administrative

funds of the Bureau of Indian Affairs that are associated with the

tribal transportation program to fund tribal technical assistance

centers under section 504(b).

Amend section 504(b)(3)(B) of title 23, United States

Code, to read as follows:

(B) Tribal technical assistance centers.-The Federal share of the

cost of an activity carried out by a tribal technical center under

paragraph (2)(D)(ii) shall be 100 percent; provided, however, that

of the amounts reserved by the Secretary of the Interior from

administrative funds of the Bureau of Indian Affairs associated

with the tribal transportation program to fund tribal technical

assistance centers under this section, the Secretary shall reserve not

less than $3,600,000 for such purposes.

Section 202(a)(7) of title 23, United States Code, is amended

to read as follows:

(7) TRIBAL TECHNICAL ASSISTANCE CENTERS.—The Secretary of

the Interior may shall reserve amounts from administrative funds of the

Bureau of Indian Affairs that are associated with the tribal transportation

program to fund tribal technical assistance centers under section 504(b).

Section 504(b)(3)(B) of title 23, United States Code, is

amended to read as follows:

(B) Tribal technical assistance centers.-The Federal share of the cost of

an activity carried out by a tribal technical center under paragraph

(2)(D)(ii) shall be 100 percent. ; provided, however, that of the amounts

reserved by the Secretary of the Interior from administrative funds of the

Bureau of Indian Affairs associated with the tribal transportation program

to fund tribal technical assistance centers under this section, the Secretary

shall reserve not less than $3,600,000 for such purposes.

Rationale: Tribal Technical Assistance Programs (TTAPs) provide invaluable assistance to Indian tribes and Tribal organizations in the

transportation arena. The TTAPs located throughout the country operate with inadequate funds which limit the technical assistance programs

and services they are able to offer to tribal entities. The proposed amendment would require the Secretary to reserve not less than $3.6 million to

fund TTAP operations each fiscal year.

Page | 54 136703.1

10. Improve the speed and efficiency in getting Emergency Relief for Federally Owned Roads (ERFO) funding to Tribes. ERFO

funding is available to Tribes to restore BIA and tribally owned roads and bridges to their pre-disaster condition. Currently there is a great

delay between the time Tribes expend funds to fix these facilities, and the time they are reimbursed for these costs. The proposal would

streamline the ERFO application process to speed the time Tribes are reimbursed for their ERFO expenditures.

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amendments

Section 125(e)(2) of title 23, United States Code, is amended

by adding at the end of the section the following:

(2) Expenditure of funds.- Notwithstanding subjection (d)(1), the

Secretary may expend funds from the emergency fund herein

authorized by this section, independently or in cooperation with

any other branch of the Federal Government, a State agency, a

tribal government, an organization, or a person, for the repair or

reconstruction of tribal transportation facilities, Federal lands

transportation facilities, and other federally owned roads that are

open to public travel, whether or not those facilities are Federal-aid

highways. Notwithstanding any other provision of law,

regulations, policy or guideline, including threshold levels for

determining eligibility for assistance under this section, tribal

governments may submit applications for emergency relief

funding for the repair or reconstruction of public transportation

facilities which are owned or maintained by tribal governments or

the Bureau of Indian Affairs directly to the Secretary of

Transportation. The Secretary shall process tribal applications in

the same manner as applications from federal agencies are

processed. The Secretary shall develop criteria for tribal

emergency relief funding applications, including appropriate

eligibility thresholds under this subsection pursuant to regulations

issued in accordance with section 202(b)(X).

23 U.S.C. § 125(e)(2) to read: (2) Expenditure of funds.- Notwithstanding subjection (d)(1), the Secretary may expend funds from the emergency fund herein authorized by this section, independently or in cooperation with any other branch of the Federal Government, a State agency, a tribal government, an organization, or a person, for the repair or reconstruction of tribal transportation facilities, Federal lands transportation facilities, and other federally owned roads that are open to public travel, whether or not those facilities are Federal-aid highways. Notwithstanding any other provision of law, regulations, policy or guideline, including threshold levels for determining eligibility for assistance under this section, tribal governments may submit applications for emergency relief funding for the repair or reconstruction of public transportation facilities which are owned or maintained by tribal governments or the Bureau of Indian Affairs directly to the Secretary of Transportation. The Secretary shall process tribal applications in the same manner as applications from federal agencies are processed. The Secretary shall develop criteria for tribal emergency relief funding applications, including appropriate eligibility thresholds under this subsection pursuant to regulations issued in accordance with section 202(b)(X)

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11. Create a 3% Tribal funding set aside in Transportation Alternatives (TA) Program. MAP-21 replaced the Safe Routes to Schools,

Scenic Byways, Transportation Enhancements and Recreational Trails Program with a new Transportation Alternatives (TA) Program.

These funds go to State Transportation Departments and so far little of this funding has been provided to Tribes. This proposal would

ensure that Tribes receive a fair share of these TA funds to build or enhance scenic byways, pedestrian pathways, safer school routes and

other TA-eligible projects through a 3% tribal set-aside.

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amendments

Section 213 of title 23, United States Code, is amended as follows:

(a) in subsection (a)(1), strike “2013 and 2014” and insert “2015

through 2020.”;

(b) insert a new section (b) in section 213 to read:

(b) Tribal projects. The Secretary shall set-aside from the funds

apportioned to the States for transportation alternatives an amount

not less than 3% for distribution to tribal governments under the

formula established in section 202 of this title. Tribal

Governments may utilize the funds for any eligible projects as

defined in (c) below or at the tribes option may program these

funds for other priority projects designated on their approved

Section 213 of title 23, United States Code, as amended:

(1) In general. - On October 1 of each of fiscal years 2013 and

20142015 through 2020 , the Secretary shall proportionally reserve from

the funds apportioned to a State under section 104(b) to carry out the

requirements of this section an amount equal to the amount obtained by

multiplying the amount determined under paragraph (2) by the ratio that

–

* * *

Rationale: To obtain emergency relief funding under the Emergency Relief for Federally Owned Roads (ERFO) Program, the Federal Highway

Administration has imposed a disaster dollar threshold of $700,000 and requires Indian tribal governments to apply through the Department of

the Interior rather than directly to the Federal Highway Administration. Because tribal roads are often narrow gravel and dirt roads, emergency

repair costs are relatively low and the damage threshold often cannot be met. Even when tribal roads are nearly destroyed by natural disasters,

the damage threshold renders otherwise meritorious funding requests ineligible for ERFO funds, depriving Indian tribal governments of much

needed emergency funding. The proposed provision requires that an appropriate damage threshold be set during a negotiated rulemaking and

streamlines the ERFO application process by authorizing tribes to submit applications directly to the Federal Highway Administration.

Page | 56 136703.1

Transportation Improvement Program (TIP).‖

(c) reorder subsections (b) through (g) as (c) through (h).

(b) Tribal Transportation Alternatives. The Secretary shall set-aside

from the funds apportioned to the States for transportation alternatives an

amount not less than 3% for distribution to tribal governments under the

formula established in section 202 of this title. Tribal Governments may

utilize the funds for any eligible projects as defined in (c) below or at the

tribes option may program these funds for other priority projects

designated on their approved Transportation Improvement Program

(TIP).‖

(b) (c) reordered sections (b) through (g) as (c) through (h).

12. Adequately Fund MAP-21 requirement that Federal and Tribally-owned bridges must now be inspected and included on the

National Bridge Inventory and require that the cost be borne by the Secretary of Transportation and not charged to the Tribal

Transportation Program.

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amendments

Amend section 1111 of Pub. L. 112-141, amending section 144(j) of

title 23, United States Code, to read as follows:

In subparagraph (j)(3), strike the subparagraph and insert in lieu

thereof the following:

―(3) an Indian tribe, or at the request of the Indian tribe, the

Section 144(j)(3) of title 23, United States Code, is amended to read:

§144. National bridge and tunnel inventory and inspection standards

* * * (j) AVAILABILITY OF FUNDS.-In carrying out this section-

* * *

(3) an Indian tribe, or at the request of the Indian tribe, the Secretary, may

Rationale: This provision creates a 3% Tribal funding set aside in the Transportation Alternatives (TA) Program. Section 1122 of the Moving

Ahead for Progress in the 21st Century Act (MAP-21) established TAP in 23 U.S.C. 213. Section 1105 of MAP-21 provides for the apportionment

of funds in 23 U.S.C. 104(b), from which TAP funding is set aside. MAP-21 replaced the Safe Routes to Schools, Scenic Byways, Transportation

Enhancements and Recreational Trails Program with a new Transportation Alternatives (TA) Program. These funds go to State Transportation

Departments and so far little of this funding has been provided to Tribes. This proposal would ensure that Tribes receive a fair share of these funds

to build or enhance scenic byways, pedestrian pathways, safer school routes and other TA-eligible projects through a 3% tribal set-aside.

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Secretary, may use funds made available to the Secretary under

sections 104(a) and 503; and‖

use funds made available to the Secretary under sections 104(a) and 503;

and

Rationale: In MAP-21, Congress declared that it was in the vital interest of the United States to inventory, inspect and improve the condition of

highway bridges and to ensure connectivity and access for residents of rural areas through strategic investments in National Highway System

bridges and bridges on all public roads. MAP-21 further directed the Secretary to inventory all highway bridges on public roads, on and off

Federal-aid highways, including tribally owned and Federally owned bridges, classify such bridges according to serviceability, safety and

essentiality for public use and, based on the classification, assign each a risk-based priority for systematic preventative maintenance, replacement

or rehabilitation. More than one fourth of all Tribal Transportation Program bridges are currently rated as deficient. The cost of rehabilitating or

replacing over 1000 deficient tribal bridges will exceed $600 million. MAP-21, however, reduced funding for the Tribal bridge program by

twenty percent (20%) from $14 million under SAFETEA-LU to $9 million and further reduced Tribal Transportation Program funding by

moving the Tribal bridge program from its separate funding status under the Highway Trust Fund to a two percent ―takedown‖ within the Tribal

Transportation Program authorization of $450 million. As Federally-owned bridges, or Tribally-owned bridges largely held in trust by the United

States for Indian tribes, the cost of inventorying such bridges, listing them on the National Bridge Inventory and inspecting them should not be

borne by the financially constrained Tribal Transportation Program but should be borne by the Secretary from funds authorized under section 104

and 503 similar to how other Federally owned bridges are listed and inspected.

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