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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 April 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 burnyt@whiteearth.com, Gwen Salt at Gwen_Salt@NCAI.org, John Healy at president.ita1@gmail.com, Matt Jaffe and Jim Glaze of Sonosky, Chambers, Sachse, Endreson & Perry, LLP at mjaffe@sonosky.com and jglaze@sonosky.com, Michael Willis and Adam Bailey of Hobbs Straus Dean & Walker, LLP at mwillis@hobbsstraus.com and abailey@hobbsstraus.com, and Julianne Baltar at Bristol Bay Native Association jbaltar@bbna.com.

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.

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

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments Section 1101. AUTHORIZATION OF APPROPRIATIONS

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. (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; (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.

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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 Interiors multi-year failure to request funding sufficient to meet the Departments obligation to maintain Indian reservation roads. 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.

Column 1 Proposed Legislation 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
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Column 2 Current law with proposed legislation (Col. 1) reflected as amendments (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
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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 tribes 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 tribes 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 tribes 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
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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 tribes 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 tribes 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 tribes 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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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. (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.

Column 1 Proposed Legislation 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 * * *

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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
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(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:

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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; (5) $55,000,000 for fiscal year 2019; and (6) $60,000,000 for fiscal year 2020. * * *

(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; (5) $30,000,000 for fiscal year 2019; and (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; (5) $55,000,000 for fiscal year 2019; and (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) * * *

(j) FORMULA GRANTS FOR PUBLIC TRANSPORTATION ON INDIAN RESERVATIONS. (1) APPORTIONMENT. (A) IN GENERAL.Of the amounts described in subsection (c)(1)(B)
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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
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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 tribes 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 tribes formula grant award falls below an award previously made to the Indian tribe under section 3013(c) of Pub. L. 10959.

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-LUs 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-21s 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.

Column 1 Proposed Legislation (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
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Column 2 Current law with proposed legislation (Col. 1) reflected as amendments


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 fiscal year 2017, $50,000,000 for fiscal year 2018, $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 fiscal year 2018, $55,000,000 for fiscal year 2019, and $60,000,000 for fiscal year 2020.

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 tribes inventory to compete for grants of up to $1,000,000increasing to $1.5 million in this languageso 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.

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

Column 1 Proposed Legislation Amend section 201(b) of title 23 United States Code, Federal Lands and Tribal Transportation Programs, to add a new subparagraph (8) to read:
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Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 23 U.S.C. 201(b)(8), is amended to read: (8) REDISTRIBUTION OF UNUSED OBLIGATION AUTHORITY.136703.1

(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.

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.

(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.

Column 1 Proposed Legislation Section 1119. FEDERAL LANDS AND TRIBAL TRANSPORTATION PROGRAMS.
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Column 2 Current law with proposed legislation (Col. 1) reflected as amendments Section 202(d)(2) of Title 23, United States Code: (d) Tribal transportation facility bridges.
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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; (ii) $80,000,000 for fiscal year 2016; (iii) $85,000,000 for fiscal year 2017; (iv) $90,000,000 for fiscal year 2018; (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 antiicing 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; (ii) $80,000,000 for fiscal year 2016; (iii) $85,000,000 for fiscal year 2017; (iv) $90,000,000 for fiscal year 2018; (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.
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(g) Establish $75,000 as the minimum annual TTP Program funding allocation for all Tribes;

Column 1 Proposed Legislation 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 tribes total TTP Program formula distributions is no less than $75,000.

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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 tribes 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.

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

Column 1 Proposed Legislation

Column 2 Current law with proposed legislation (Col. 1) reflected as 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 SAFETEALU (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.

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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 the ten year period 2005 through 2014, approximately $296 million has been withindrawn from the IRR and TTP program due to operation of the obligation limitatio n deduction. 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. (i) Reduce BIA and FHWA program management and project-related administrative expenses from 6% to 5% with an annual cap of $28 million.

Column 1 Proposed Legislation

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments


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.

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.

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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.

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.

Column 1 Proposed Legislation

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments

Section 104(c)(2)(A) of title 23, United States Code, is amended as follows: 104. Apportionment * * *

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
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(c) Calculation of State amounts. * * *

(2) For Fiscal Year 2015 2020


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(A) STATE SHARE.For fiscal years 2015-2020, the amount under section 148, the congestion mitigation and air quality improvement for each State of combined apportionments for the national highway program under section 149, and to carry out section 134 shall be performance program under section 119, the surface transportation determined as follows: 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 (ii) ADJUSTMENTS TO AMOUNTS.The initial amounts attributable to highway users in the State paid into the Highway Trust resulting from the calculation under clause (i) shall be adjusted to Fund (other than the Mass Transit Account) in the most recent fiscal year ensure that, for each State, the amount of combined for which data are available; provided, however, that of the amount apportionments for the programs shall not be less than 95 percent apportioned to the States for the highway safety improvement program of the estimated tax payments attributable to highway users in the under section 104(b)(3), the Secretary shall apportion at least 2 percent of State paid into the Highway Trust Fund (other than the Mass such funds to augment the competitive grants made by the Secretary to Transit Account) in the most recent fiscal year for which data are Indian tribes under section 202(e) of this title to reduce traffic fatalities available; provided, however, that of the amount apportioned to and injuries on Tribal Transportation systems. 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 Section 402(c)(2) Apportionment of title 23, United States Code, is to Indian tribes to reduce traffic fatalities and injuries on Tribal amended to strike 2 percent and insert 3 percent as follows: Transportation systems. (2) Apportionment. Except for amounts identified in section 403(f), Section 402(c)(2) of title 23, United States Code, is amended by funds described in paragraph (1) shall be apportioned 75 per centum in the striking 2 percent and inserting 3 percent. 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
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apportionment to the Secretary of the Interior shall not be less than 2 percent 3 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.

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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)

Column 1 Proposed Legislation


(a) IN GENERAL.Chapter 2 of Title 23 United States Code is amended by inserting after section 206 the following:

Column 2 Current law with proposed legislation (Col. 1) reflected as 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) E STABLISHMENT .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) E LIGIBILITY . (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 Page | 22

207. Tribal transportation self-governance program


(a) E STABLISHMENT .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) E LIGIBILITY . (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 tribes self-determination contracts or self-governance
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annual audit of the Indian tribes self-determination contracts or self-governance funding agreements with any Federal agency shall be conclusive evidence of the required stability and capability. (c) C OMPACTS . (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) A NNUAL F UNDING A GREEMENTS . (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 Page | 23

funding agreements with any Federal agency shall be conclusive evidence of the required stability and capability. (c) C OMPACTS . (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-togovernment 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) A NNUAL F UNDING A GREEMENTS . (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 portions thereof) administered by the Secretary that are otherwise available to Indian tribes. (ii) TRANSFERS OF STATE FUNDS. (I) INCLUSION OF TRANSFERRED FUNDS IN
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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. Page | 24

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
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(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 Page | 25

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
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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. Page | 26

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) G ENERAL P ROVISIONS . (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),
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(e) G ENERAL P ROVISIONS . (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. (A) IN GENERAL. (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 Page | 27

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. (A) IN GENERAL. (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
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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) P ROVISIONS R ELATING T O T HE S ECRETARY . (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 Page | 28

(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) P ROVISIONS R ELATING T O T HE S ECRETARY . (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
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(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 Page | 29

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
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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 Page | 30

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) C OST P RINCIPLES .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. 450j1), 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) T RANSFER O F F UNDS .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) C ONSTRUCTION P ROGRAMS . (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
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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) C OST P RINCIPLES .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 SelfDetermination and Education Assistance Act (25 U.S.C. 450j1), 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. 450j1(f)). (h) T RANSFER O F F UNDS .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) C ONSTRUCTION P ROGRAMS . (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 Page | 31

regulations or as specifically approved by the Secretary (or the Secretarys designee). (2) MONITORING.Construction programs shall be monitored by the Secretary in accordance with applicable regulations. (j) F ACILITATION . (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
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specifically approved by the Secretary (or the Secretarys designee). (2) MONITORING.Construction programs shall be monitored by the Secretary in accordance with applicable regulations. (j) F ACILITATION . (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. Page | 32

Department. (k) D ISCLAIMERS . (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) A PPLICABILITY O F I NDIAN S ELF -D ETERMINATION A ND E DUCATION A SSISTANCE A CT .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. 458aaa5), relating to general provisions. (2) Subsections (b) through (e) and (g) of section 507 of such Act (25 U.S.C.458aaa6), 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. 458aaa7), relating to transfer of funds. (4) Section 510 of such Act (25 U.S.C. 458aaa9), relating to Federal procurement laws and regulations. (5) Section 511 of such Act (25 U.S.C. 458aaa10), relating to civil actions. (6) Subsections (a)(1), (a)(2), and (c) through (f) of section 512 of such Act (25 U.S.C. 458aaa11), 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
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(iv) FINALITY OF DECISIONS.A decision by the Secretary under this subparagraph shall be final for the Department. (k) D ISCLAIMERS . (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) A PPLICABILITY O F I NDIAN S ELF -D ETERMINATION A ND E DUCATION A SSISTANCE A CT .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. 458aaa5), relating to general provisions. (2) Subsections (b) through (e) and (g) of section 507 of such Act (25 U.S.C.458aaa6), 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. 458aaa7), relating to transfer of funds. (4) Section 510 of such Act (25 U.S.C. 458aaa9), relating to Federal procurement laws and regulations. (5) Section 511 of such Act (25 U.S.C. 458aaa10), relating to civil actions. (6) Subsections (a)(1), (a)(2), and (c) through (f) of Page | 33

U.S.C. 458aaa14), relating to disclaimers. (8) Subsections (a) and (b) of section 516 of such Act (25 U.S.C. 458aaa15), relating to application of title I provisions. (9) Section 518 of such Act (25 U.S.C. 458aaa17), relating to appeals. (m) D EFINITIONS . (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, intertribal consortium, or tribal organization. (F) PROGRAM.The term program means the tribal transportation self-governance program established under
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section 512 of such Act (25 U.S.C. 458aaa11), 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. 458aaa14), relating to disclaimers. (8) Subsections (a) and (b) of section 516 of such Act (25 U.S.C. 458aaa15), relating to application of title I provisions. (9) Section 518 of such Act (25 U.S.C. 458aaa17), relating to appeals. (m) D EFINITIONS . (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 Page | 34

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 SelfDetermination and Education Assistance Act (25 U.S.C. 450b; 458aaa) apply, except as otherwise expressly provided in this section. (n) R EGULATIONS . (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
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authorized Indian tribe, inter-tribal consortium, or nominated by and be representatives of Indian tribes with tribal organization shall have the rights and funding agreements under this title. responsibilities of the authorizing Indian tribe (except (B) REQUIREMENTS.The committee shall confer with, as otherwise provided in the authorizing resolution or and accommodate participation by, representatives of Indian in this title). In such event, the term Indian tribe as tribes, inter-tribal consortia, tribal organizations, and used in this part shall include such other authorized individual tribal members. Indian tribe, inter-tribal consortium, or tribal (C) ADAPTATION OF PROCEDURES.The Secretary shall organization. adapt the negotiated rulemaking procedures to the unique (F) PROGRAM.The term program means the context of self-governance and the government-totribal transportation self-governance program government relationship between the United States and established under this section. Indian tribes. (G) SECRETARY.The term Secretary means the (3) EFFECT.The lack of promulgated regulations shall not Secretary of Transportation. limit the effect of this section. (H) TRANSPORTATION PROGRAMS.The term (4) EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE, transportation programs means all programs AND RULES.Unless expressly agreed to by the participating administered or financed by the Department under Indian tribe in the compact or funding agreement, the this title and chapter 53 of title 49. participating Indian tribe shall not be subject to any agency (2) APPLICABILITY OF OTHER DEFINITIONS.In this circular, policy, manual, guidance, or rule adopted by the section, the definitions set forth in sections 4 and 505 of the Department of Transportation, except regulations promulgated Indian Self-Determination and Education Assistance Act under this section.. (25 U.S.C. 450b; 458aaa) apply, except as otherwise expressly provided in this section. (b) C LERICAL A MENDMENT .The analysis for such chapter is (n) R EGULATIONS . amended by inserting after the item relating to section 206 the (1) IN GENERAL. following: (A) PROMULGATION.Not later than 90 days after the date of enactment of the American Energy 207. Tribal transportation self-governance program.. 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 Page | 35
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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) C LERICAL A MENDMENT .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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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 SelfGovernance 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 sectionreported 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.

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.

Column 1 Proposed Legislation 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

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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 (A) In general.--Notwithstanding any other provision of law or any or any interagency agreement, program guideline, manual, or interagency agreement, program guideline, manual, or policy directive, all
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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 interagency 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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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.

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)

Column 1 Proposed Legislation


(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.

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments


(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.

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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. 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.

Column 1 Proposed Legislation Section 202 of title 23, United States Code, is amended to add a new section (b) to read: RIGHTS-OF-WAY AND CORRIDOR MANAGEMENT.

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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.

(g)

(A) APPLICABLE REGULATIONS (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 SelfDetermination 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
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(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

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 rightsof-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-ofway 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
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(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
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(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 rightof-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 governments transportation priorities, and with the tribes 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-ofway for each eligible route in accordance with the schedule and
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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 governments transportation priorities, and with the tribes 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 rightof-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
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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 SelfDetermination and Education Assistance Act (25 USC 450 et seq.) (including Title VII of that Act) in which case: (I) the costs of acquiring such rightof-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 rightof-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
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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-ofway 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.
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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 tribes 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 tribes 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 Tribes NEPA decision. This NEPA provision is modeled on the successful Title V Self-Governance Program administered by the Indian Health Service.

Column 1 Proposed Legislation


(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. Page | 46

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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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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 tribes 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. 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.

Column 1 Proposed Legislation 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.

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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 (b) ESTABLISHMENT.The Secretary shall establish a tribal tribal government, carrying out or proposing to carry out projects eligible infrastructure bank for making loans and providing other forms of for assistance under this section. credit assistance to a tribal government, carrying out or proposing to carry out projects eligible for assistance under this section. (c) FUNDING. (c) FUNDING. (1) SEPARATE ACCOUNTS.
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(1) SEPARATE ACCOUNTS. (A). IN GENERAL.The tribal infrastructure bank established

under this section shall maintain (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
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(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.

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.
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(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
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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 nonFederal sources to an infrastructure bank from projects assisted by the bank. (B) TREATMENT.Such a repayment shall be considered to be Federal funds.
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(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

(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.

Column 1 Proposed Legislation 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.

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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.

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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. Column 1 Proposed Legislation Column 2 Current law with proposed legislation (Col. 1) reflected as amendments 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)

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).
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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.

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.

Column 1 Proposed Legislation


Section 213 of title 23, United States Code, is amended as follows:

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments

Section 213 of title 23, United States Code, as amended: (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 Page | 55
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(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 * * *

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).

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.

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.

Column 1 Proposed Legislation

Column 2 Current law with proposed legislation (Col. 1) reflected as amendments

Amend section 1111 of Pub. L. 112-141, amending section 144(j) of Section 144(j)(3) of title 23, United States Code, is amended to read: title 23, United States Code, to read as follows: 144. National bridge and tunnel inventory and inspection standards In subparagraph (j)(3), strike the subparagraph and insert in lieu * * * thereof the following: (j) AVAILABILITY OF FUNDS.-In carrying out this section* * * (3) an Indian tribe, or at the request of the Indian tribe, the (3) an Indian tribe, or at the request of the Indian tribe, the Secretary, may
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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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