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 In 1997, Hobbs Straus lawyers assisted the Susanville Indian Rancheria become one of the first tribes in the country to use the provisions of ISDEAA to successfully acquire Department of Army surplus property in trust under the Base Realignment and Closure Act.

General Memorandum 15-082

General Memorandum 15-082
Surface Transportation Reauthorization Enacted; Tribal Transportation Self-Governance Program Established

On December 4, 2015, President Obama signed the Fixing America's Surface Transportation Act (FAST Act, PL 114-94). After years of short-term funding for transportation infrastructure, the five-year FAST Act authorization will provide $305 billion in highway and transit spending through 2020. The FAST Act made several important changes to the Tribal Transportation Program. The most notable of those is the creation of the Department of Transportation (DOT) Tribal Self-Governance Program that extends many of the self-governance provisions of Title V of the Indian Self-Determination and Education Assistance Act (ISDEAA) to DOT. The FAST Act also provides modest funding increases for the Tribal Transportation Program (TTP) and the Tribal Transit program as well as a number of technical changes to these programs.

Self-Governance. The extension of self-governance to the DOT marks a significant step forward: it is the first expansion of self-governance to a federal agency beyond the Department of Interior and the Indian Health Service. Moreover, through this extension of self-governance to the DOT, tribes will be able to obtain all of their transportation funds (including not only their TTP funds, but also transit, Federal-aid and other DOT funds) under one self-governance agreement. This will greatly streamline the administrative procedures and help tribes to place safe and reliable transportation infrastructure on the ground and into operation faster and more cost effectively.

Significantly, the DOT Tribal Self-Governance Program requires the development of regulations pursuant to a negotiated rulemaking process, thus providing tribes an opportunity to shape the program's implementing regulations. The statute requires DOT to begin a negotiated rulemaking process by March 4, 2016, to draft regulations to implement the DOT Tribal Self-Governance Program. The committee will be made up of tribal and federal representatives, but will be composed primarily of tribally-nominated representatives. It is critical that tribes intending to use the DOT Tribal Self-Governance Program be involved in drafting the rules for the program. The process must be completed within 30 months; we recommend that tribes treat the negotiated rulemaking as an urgent matter and a priority in order to ensure that the program regulations are beneficial to tribal governments.

The version of the DOT Tribal Self-Governance Program included in the FAST Act largely tracks the standalone DOT Tribal Transportation Self-Governance Act (HR 1068) introduced by Representatives DeFazio (D-OR) and Young (R-AK). See our General Memorandum 15-020 of February 27, 2015. House Transportation and Infrastructure Chairman Shuster (R-PA), Ranking Member DeFazio, and Representative Young were all instrumental to ensuring that the DOT Tribal Self-Governance Program was included in the FAST Act.

Funding Increases. Tribal Transportation Program funding is increased to $465 million for FY 2016 ($15 million above the current funding level of $450 million) with $10 million increases each year thereafter through FY 2020. The funding for the Tribal Transit program is increased to $35 million for FY 2016 (the formula program of the Tribal Transit program is increased from its current level of $25 million to $30 million, and the discretionary program remains at $5 million) and will remain at this level through FY 2020.

Tribal High Priority Project (HPP) program. The HPP was established in the previous surface transportation reauthorization (MAP-21) as a stand-alone program to provide funds for tribes with insufficient formula funding to construct their priority transportation projects. Unfortunately, this program was not reauthorized. Although the program, while authorized under MAP-21, was not funded during the years covered by that statute, the expiration of the program is a further setback to tribes that relied on that program.

New "Nationally Significant" program. A $100 million per year grant program is established for "nationally significant" Federal Lands and tribal transportation projects. To be eligible for this project, however, a project must have an estimated cost of no less than $25 million with extra priority given to projects with an estimated cost of $50 million or more.

Other Changes. The FAST Act contains a few program changes that tribes have been seeking for many years and also some new reporting provisions. Some of these changes, including the funding increases for the TTP, were included in Senate Committee on Indian Affairs Chairman Barrasso's (R-WY) standalone bill, the Tribal Infrastructure and Roads Enhancement and Safety Act (TIRES Act, S 1776). Some key changes are:

• The Project Management and Oversight (PM&O) takedown for administrative expenses of the Bureau of Indian Affairs and the Federal Highway Administration has been reduced from 6 percent to 5 percent;
• The funding set aside for the Tribal Transportation Facility Bridges program has been increased from 2 percent to 3 percent;
• Tribes are now subject to new data collection reporting on expenditures of Tribal Transportation Program funds; and
• There is no new funding for tribal safety programs, but the Secretary of DOT is required to provide the following reports to Congress related to tribal safety:
o After consulting with the Secretary of Interior, the Secretary of Health and Human Services, the Attorney General, and Indian tribes, the Secretary of DOT is to provide a report describing the quality of transportation safety data collected by states, counties, and tribes for transportation safety systems, in order to improve the collection and sharing of data regarding crashes on Indian reservations.
o Similarly, the Secretary of DOT, after consultation with the Secretary of Interior, Tribes, states and their respective attorneys general, is to provide a report that identifies options to improve safety on public roads on Indian reservations.
The enactment of the FAST Act represents a significant step forward for tribal self-determination. We will be closely following the negotiated rulemaking process for the Department of Tribal Self-Governance Program. Please let us know if you are interested in participating in that rulemaking or if you would like to be included in our shared-cost advocacy and reporting related to that rulemaking process.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com)
Michael Willis (mwillis@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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