[Senate Report 106-406]
[From the U.S. Government Publishing Office]
Calendar No. 796
106th Congress Report
SENATE
2d Session 106-406
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AMENDING THE INDIAN RESERVATION ROADS PROGRAM
_______
September 11, 2000.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2283]
The Committee on Indian Affairs, to which was referred the
bill (S. 2283) to provide amendments to the Indian Reservation
Roads (IRR) program, and for other purposes, having considered
the same, reports favorably thereon with an amendment in the
nature of a substitute and recommends that the bill (as
amended) do pass.
Purposes
The purpose of S. 2283, the Indian Tribal Surface
Transportation Act of 2000, is to provide technical amendments
to the IRR program that is administered pursuant to the
Transportation Equity Act for the 21st Century (TEA-21, or
``the Act''), P.L. 105-178 (codified at 23 U.S.C.) to improve
the delivery of road and bridge assistance to Indian tribes in
a manner that recognizes the right of tribal self-determination
and self-governance, and for other purposes.
Background
On June 9, 1998, Congress enacted TEA-21 to authorize
Federal surface transportation programs for highways, highway
safety, transit and other surface transportation programs. TEA-
21 authorizes Federal surface transportation for the six-year
period of October 1, 1997 through September 20, 2003, and
builds upon the programs and policies of the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), P.L. 102-240
(codified in various sections of 23 U.S.C., 49 U.S.C., and
other titles of U.S.C.).
Moreover, the Act expands ISTEA's emphasis on flexibility
and local decisionmaking in surface transportation planning and
development.\1\ Over its six-year period, the Act dedicates
$218 billion in investment for surface transportation. The
goals of TEA-21 are to improve highways, increase highway
safety, protect the environment, and increase economic growth.
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\1\ S. Rep. No. 106-226, at 1 (2000).
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In 1997, Indian specific amendments to the Act were offered
by Chairman Campbell and Vice-Chairman Inouye to authorize
Indian tribes to contract for ``all funds'' made available
under the Act, and to require the Secretary of Interior to
institute negotiated rule-making procedures to implement key
elements of the Act, including the development of a new funding
formula.
Under Sec. 1115 of the Act, the IRR program is incorporated
under the Federal Land Highways Program (FLHP). The FLHP
provides funding for public roads and transit facilities
serving Federal and Indian lands. There are two components of
the FLHP that significantly impact Indian lands, including
Alaska Native lands. First, Indian tribes are eligible to
receive benefits from the IRR program for the survey,
improvement, construction, and maintenance of roads that
provide access to and from Indian lands. Second, the Indian
Reservation Road Bridge Program (IRRBP) designates a minimum of
$13 million a year for the rehabilitation and replacement of
deficient bridges on Indian lands.\2\ Under IRR, tribes may
choose to administer their IRR programs pursuant to the Indian
Self-Determination and Education Assistance Act (ISDEAA), P.L.
93-638 (25 U.S.C. Sec. Sec. 450 et seq).\3\
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\2\ Previously, the IRRBP was a separate set-aside from outside the
IRR program funding. Under TEA-21, the IRRBP now sets aside a minimum
of $13 million annually from the IRR budget.
\3\ According to the Bureau of Indian Affairs (BIA), anywhere from
\1/3\ to \1/2\ of the IRR programs are administered under P.L. 93-638
contracts.
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The IRR program, including the IRRBP, is jointly
administered by both the Bureau of Indian Affairs (BIA) and the
Federal Highway Administration (FHWA). In Native communities,
the IRR program is intended to provide safe and adequate
transportation and public road access to and within Indian
reservations, Indian lands and communities for Native American
visitors, recreationists, resource users and others while
contributing to economic development, self-determination, and
employment of Native Americans. Under the Act, the authorized
level of funding for the IRR program was $225 million in 1998
and $275 million for each year from 1999-2003 for a six-year
total of $1.6 billion for the IRR program.
The Need for Improved Reservation Roads
There are 561 Federally recognized Indian tribes with
Indian land representing roughly 56 million acres within the
United States in the lower 48 states and 44 million acres in
the State of Alaska. The IRR transportation system provides
access to and from Indian lands and communities. Due to the
geographic remoteness and often difficult terrain of Indian
lands, the IRR system represents one of the most rudimentary
transportation systems in the United States. Despite the fact
that much of the IRR system is unpaved and in poor condition,
more than 2 billion vehicle miles are traveled annually on this
transportation network.
There is an enormous and largely unmet need for
transportation infrastructure on Indian lands throughout the
country. Available information indicates that there is an
estimated $6.8 billion backlog of needed transportation
improvements in Indian country.\4\ Poor transportation
infrastructure has a devastating impact on Indian emergency
services, law enforcement capabilities, and economic
development. Moreover, with roads and bridges in unsafe
condition, the annual fatality rate on the IRR system is more
than four times that of the national average.\5\
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\4\ 1999 Status of the Nation's Highways, Bridges and Transit:
Conditions and Performance, Report to Congress, United States
Department of Transportation, May 2000 (Appendix E-8). The estimated
backlog of $6.8 billion is somewhat understated, because it only takes
into account the roads that are in the BIA's inventory. The inventory
is not completely up-to-date, because some tribes and/or regions have
not updated their inventory during TEA-21.
\5\ Id.
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Over 66% of the IRR system is unimproved earth and gravel
while approximately 26% \6\ of the IRR bridges are deficient.
Approximately 50,000 miles of roads serve Indian reservations
and lands. Of these BIA roads comprise 23,000 miles, and
Federal, State and local public roads comprise some 25,600
miles.
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\6\ The average was determined by analyzing that approximately 23
percent of the 779 bridges owned by the BIA are deemed deficient while
27% of the 3,006 state and locally owned non-BIA bridges are also
deemed deficient. Indian Tribal Surface Transportation Act of 2000:
Legislative Hearing on S. 2283 Before the Senate Committee on Indian
Affairs, 106th Congress (2000) (statement of Kenneth Wykle,
Administrator, Federal Highway Administration, Department of
Transportation).
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Of the BIA roads only 34% are paved and rated in ``good
condition.'' The remaining roads are either paved and in fair
or poor condition, or unpaved. The result is that unpaved and
weather-compromised roads regularly become muddy and are
washed-out in severe weather conditions.
In the history of the IRR program, reservation roads have
never received the level of funding needed to bring them on par
with non-IRR roads and bridges. Although reservation roads
compose 2.63% of the Federal Aid Highway Program, no less than
1% of this Federal aid has been allocated to Indian roads. If
the IRR program were to receive 2.63% of TEA-21 funding, then
the IRR program would be authorized and fully funded at $4.7
billion over the 1998-2003 period, as opposed to the current
authorized amount of $1.6 billion.
Section-by-Section Analysis
Section 1. Short title
The short title of this bill is the Indian Tribal Surface
Transportation Act of 2000.
Section 2. Amendments relating to Indian tribes
a. Obligation Limitation. This section would amend TEA-21
and remove application of obligation limitation from the IRR
program to ensure the full appropriation of Congress'
authorized amount. Although the Act authorizes $1.6 billion for
the IRR program, application of the obligation limitation has
already deducted approximately $122 million from the IRR
program for FY 1998-2001. Eventually, the imposition of the
obligation limitation will result in a loss of over $192
million to the IRR program.\7\
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\7\ Id.
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Under section 1102 of TEA-21, there is an automatic
percentage deducted from the Federal Aid Highway Programs,
including the IRR program.\8\ The percentage of funds that is
deducted from the Federal Aid Highway and Highway Safety
Construction Program acts as a ceiling on the obligation
contract authority. This ceiling controls highway program
spending in response to economic and budgetary conditions.
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\8\ Because the Federal transportation program requires multiple-
year authorizations and availability of funds, both ISTEA and TEA-21
have contract authority for multiple years and are not subject to the
annual appropriations process. To ensure that this multi-year funding
is consistent with national budget policy, TEA-21 imposes an obligation
ceiling to withhold a certain percentage of Federal Aid Highway Program
monies.
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The intent of the obligation limitation provision is to
give states control for some of the designated Federal roads
that are located within state lands. Although the excess
percentage of obligated funds is redistributed to certain
Federal programs and to states, the IRR program is not eligible
under TEA-21 to benefit from the redistribution of unused
obligated authority.\9\ Thus, the percentage of funds that are
withheld from the IRR program by the obligation limitation are
not reinvested into Indian and Alaska Native communities and
instead are redistributed to states or other eligible
recipients. The effects of this obligation limitation are
harmful to tribes who have limited resources and among the
worst transportation infrastructure in the nation.
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\9\ Under 1102(d), states or programs that are unable to obligate
their share of the obligation ceiling are able to transfer their unused
funds to other states and certain Federal programs that are able to
obligate more than their initial share of the obligation limitation
funds.
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Under ISTEA, Federal aid highways and Indian roads were not
subject to this obligation limitation. This amendment would
return the IRR program to the same position it occupied under
ISTEA.\10\
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\10\ This amendment will fully fund the IRR program by assigning it
to Sec. 1102(c)(1) that sets aside certain programs, such as the
Highway Use Tax Evasion Program and the Bureau of Transportation
Statistics, before distribution of the obligation limitation.
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b. Pilot Project. Currently, the IRR program is
administered by the BIA, the FHWA, and tribal transportation
departments. With three agencies administering the program,
inefficiencies and duplicative procedures exist. This section
provides for development of a pilot program pursuant to the
ISDEAA model where twelve (12) tribes are authorized to
directly contract with the FHWA, removing the BIA as an
intermediary from the IRR process.
The FHWA's core competency is the administration of the
Federal highway program. This pilot program promotes efficiency
in the administration of the IRR program and also encourages
Indian self-determination. Moreover, the pilot program is
consistent with the principles of both ISTEA and TEA-21 of
increased state and local flexibility and decisionmaking. Just
as local authorities are deemed to know best the needs of their
communities, so are tribal governments.
The 12 tribes selected to participate in the pilot program
will be chosen on a geographical basis representing the various
regions of the country. The Committee's intent is to have
broad-based participation in the pilot program. As long as
there are eligible applicants from each of the BIA's twelve
regions, at least one tribe and/or consortia from each of the
BIA's regions should be selected to participate.
The language in this provision clarifies that funding for
those tribes participating in the pilot program will be based
on the national funding formula implemented under TEA-21
section 1115(b). In addition to the formula monies, all tribes
participating in this pilot program will receive any monies
that the BIA may have withdrawn under their 6 percent
authority.\11\ Because the pilot program tribes are directly
contracting with the FHWA, the BIA may not deduct any
administrative or projected-related funds from monies that the
pilot program tribes are awarded.
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\11\ In recent years the annual appropriations acts have provided
the BIA with authority to absorb up to 6 percent of IRR funding for the
``administration'' of the IRR program. The FY1999 and FY2000 Omnibus
Appropriations Acts and the FY2001 Senate Interior appropriations bill
states, ``that not to exceed 6 percent of the contract authority
available to the Bureau of Indian Affairs from the Federal Highway
Trust Fund may be used to cover the road program management costs of
the Bureau.''
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The candidates in the applicant pool must also demonstrate
financial stability and financial management capability for 3
years prior to applying to participate in the demonstration
program. If a tribal consortium has not been in operation for 3
years, then the consortium must meet the audit requirements for
the period during its operation, and each member of the
consortium must also meet the audit requirements for the
year(s) prior to joining the consortium to equate the required
3 year period.
c. Administration. The FY1999 and FY2000 Omnibus
Appropriations Acts and the FY2001 Senate Interior
appropriations bill states, ``that not to exceed 6 percent of
the contract authority available to the Bureau of Indian
Affairs from the Federal Highway Trust Fund may be used to
cover the road program management costs of the Bureau.''
The BIA has taken the position that it may not only
withhold up to 6 percent of IRR funding for the overall
administration of the IRR program, but that it may also
withhold an additional amount of funding to perform project-
related administrative activities. By creating this superficial
distinction between the 6 percent withholding and ``project-
related'' administrative funds, the BIA has exceeded the 6
percent authority that Congress provided. Because the BIA has
not demonstrated that it has or can increase value to the IRR
program to Congress' satisfaction, the agency's access to and
use of the IRR funds for administrative and project-related
purpose must be strictly circumscribed.
Accordingly, the bill explicitly states that the BIA may
not exceed 6 percent of TEA-21 funding for administrative costs
relating to the IRR program and individual projects. This
language is intended to ensure that the IRR monies are
distributed to tribes and benefit Indian communities. Testimony
provided to the Committee suggests that when the BIA withholds
6 percent for administrative costs and then additional
percentages for individual project-related costs, the
administrative activities funded are often duplicative and
unnecessary. Indian communities are not benefitted when IRR
money remains at BIA headquarters or even BIA regional offices
for such functions. Eventually, the BIA's administrative costs
and project-related costs should be reduced as more tribes
participate in P.L. 93-638 contracting or self-governance
compacting in IRR programs.
The amendment also clarifies that all IRR funds (including
TEA-21 funding for roads and bridges) are available to Indian
tribes that are willing and able to assume the administration
of their IRR program through ISDEAA contracts. TEA-21's section
1115 clearly states:
* * * all funds [emphasis added] made available under
this title for Indian reservation roads and for highway
bridges located on Indian reservation roads * * * shall
be made available, upon 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.
Despite the lack of ambiguity in TEA-21, the BIA continues
to stall on tribal requests made under ISDEAA to enlarge the
pool of tribes who are participating in P.L. 93-638 direct
contracting or self-governance compacting. Accordingly, the
amendment reaffirms congressional intent that all funds shall
be made available to tribes who request and are qualified to
use P.L. 93-638 contracting and self-governance compacting for
their IRR program.
Moreover, the language clearly states that if a tribe
assumes responsibility for the administration of their IRR
programs under P.L. 93-638 or the self-governance pilot
program, the BIA cannot withhold 6 percent of the funding or
any percentage for project-related costs for road programs,
functions, services, or activities that the Indian tribe has
now assumed. Tribes that are operating IRR programs under P.L.
93-638 contracting or the self-governance pilot program do not
need the BIA's ``administrative services.'' This amendment is
needed to remedy the current situation where the BIA no longer
administers IRR programs for contracting tribes, yet continues
to deduct both 6 percent and project-related funds for
administrative costs. If a tribe is administering the IRR
program, then the tribe should receive all of the funds which
the BIA previously used to perform the same functions.
Health and Safety. Finally, the bill allows tribes the
option to independently meet the statutorily required Health
and Safety Standards without the additional requirements of BIA
oversight but only if the tribe: (1) agrees in its contract to
meet industry standards, (2) has had a licensed engineer review
and certify the plans and specifications, and (3) has sent a
copy of the certification to the BIA.
Currently, the BIA will not permit an Indian tribe to begin
construction on an IRR project until after the BIA has reviewed
and approved the plans, specifications and estimates
(PS&E's)for the project to ensure that construction of the project will
not jeopardize public health and safety. However, providing tribes
flexibility in meeting health and safety standards will not limit the
ability of the BIA or FHWA to ensure that the IRR roads and bridges are
built safely and efficiently. The BIA will retain its monitoring and
final inspection authorities as currently permitted under law.\12\
Finally, the requirements of the Single Audit Act (31 U.S.C. Sec. 7501
et seq.) will provide additional means to ensure compliance and subject
the non-complaint tribe to the usual single audit penalties.\13\
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\12\ See 25 U.S.C. Sec. 458cc(e)(1); 25 C.F.R. Sec. 900.131.
\13\ Under the Single Audit Act, an auditor spot checks contractual
commitments, such as an Indian tribe's commitment to adhere to industry
standards. By reviewing and analyzing the construction documents and
other supportive work papers, the auditor will ensure that the tribe is
in compliance with the contract.
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The amendment is needed because the current BIA review
process creates substantial delay, with tribes often forced to
wait an entire construction period for the BIA to review the
PS&E's that were submitted by tribes who have either a licensed
engineer on staff or retained on contract. Retaining a
bureaucratic check on every detail of IRR planning and
construction is unnecessary and creates redundancy and
inefficiency. Moreover, this amendment is consistent with ISTEA
and TEA-21's policies of increasing local and state flexibility
and decision-making by authorizing tribes to begin their
construction projects without unreasonable delay that exists
from bureaucratic delay. By promoting efficiency, limited IRR
funding can be better managed and budgeted.
Legislative History
The Indian Tribal Surface Transportation Act of 2000 (S.
2283) was introduced on March 23, 2000, by Senator Campbell,
for himself, and for Senator Inouye and Senator Johnson. S.
2283 was referred to the Committee on Indian Affairs and a
legislative hearing was held on the bill on June 28, 2000. On
July 26, 2000, the Committee on Indian Affairs convened a
business meeting to consider S. 2283 and other measures that
had been referred to it, and on that date, the Committee
unanimously reported a substitute amendment to S. 2283.
Committee Recommendation and Tabulation of Vote
On July 26, 2000, the Committee on Indian Affairs, in an
open business session, adopted an amendment-in-the-nature of a
substitute to S. 2283 by voice vote and ordered the bill, as
amended, reported favorably to the full Senate.
Cost and Budgetary Consideration
The cost estimate for S. 2283 as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 31, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2283, the Indian
Tribal Surface Transportation Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is James
O'Keeffe.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 2283--Indian Tribal Surface Transportation Act of 2000
S. 2283 would modify the Indian Reservation Roads (IRR)
program within the Department of Transportation's (DOT's)
Federal-Aid Highways program. CBO estimates that implementing
the bill would not have a significant impact on the federal
budget. The bill would not affect direct spending or receipts;
therefore, pay-as-you-go procedures would not apply. S. 2283
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would impose no
costs on state, local, or tribal governments.
S. 2283 would set the obligation limitation for the IRR
program equal to the contract authority available for this
program. (Contract authority is a mandatory form of budget
authority, its use under the federal-aid program is generally
controlled by obligation limitations contained in appropriation
acts.) Under current law, the obligation limitation for the IRR
program would be lower than the contract authority for this
program. For 2000, the IRR contract authority is $289 million
and the obligation limitation for this program is $254 million.
S. 2283 would not change the total amount of contract
authority, or the overall obligation limitation for the
federal-aid program. Consequently, any increase in spending for
the IRR program under this bill would be offset by reduced
spending on other federal-aid activities.
The CBO staff contact is James O'Keeffe. This estimate was
approved by Peter H. Fontaine, Deputy Director for Budget
Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory paperwork impact that would be incurred
in implementing the legislation. The Committee has concluded
that enactment of S. 2283 will create only de minimis
regulatory or paperwork burdens.
Executive Communications
The Committee has received a letter from the Department of
Interior commenting on S. 2283, dated July 11, 2000. This
letter is set forth below.
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, July 11, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 2283, the ``Indian Tribal
Surface Transportation Act of 2000'' and its impact on the
current Indian Reservation Roads (IRR) program as jointly
administered by the Bureau of Indian Affairs (BIA) and the
Federal Highway Administration (FHWA). The Department opposes
S. 2283.
The IRR program was established on May 26, 1928, by Public
Law 520, 25 U.S.C. 318(a). The partnership with the BIA and the
FHWA began in 1930 when the Secretary of Agriculture was
authorized to cooperate with the state highway agencies and the
Department of the Interior (Interior) in the survey,
construction, reconstruction, and maintenance of Indian
reservation roads serving Indian lands.
The first Memorandum of Agreement between the BIA and the
FHWA was executed in 1948. In 1958, the laws relative to
highways were revised, codified, and reenacted as Title 23,
U.S.C. by Public Law 85-767. The new title contained a
definition of IRR and bridges and a section devoted to Indian
reservation roads.
Since the passage of the Surface Transportation Assistance
Act of 1982 (Public Law 97-424), which incorporated the Indian
Reservation Roads program into the Federal Lands Highway
Program (FLHP) and provided funding from the Highway Trust
Fund, the IRR program has enjoyed an expanded partnership with
the FHWA and increased transportation opportunities for Indian
tribal governments.
With the enactment of the TEA-21, the program changed to
include a Nationwide Priority Program for improving IRR
deficient bridges, and negotiated rulemaking with Indian tribal
governments required for IRR program procedures and the
``relative need'' funding formula.
The IRR program is authorized under the FLHP, 23 U.S.C.
204. The use of IRR funds is also defined in 23 U.S.C. 204. The
authorized funding level by TEA-21 was $225 million in 1998 and
$275 million for each of fiscal years 1999 through 2003. The
program is jointly administered by the BIA Division of
Transportation (BIADOT) and the Federal Lands Highway (FLH) of
the FHWA.
The purpose of the IRR program is to provide safe and
adequate transportation and public road access to and within
Indian reservations, Indian lands and communities for Native
Americans, visitors, recreationists, resource users and others
while contributing to economic development, self-determination,
and employment of Native Americans.
Currently, the IRR system consists of approximately 41,430
kilometers (25,700 miles) of BIA and tribally owned roads and
41,270 kilometers (25,600 miles) of state, county and local
government public roads with one (1) ferry boat operation
(Inchelium-Gifford Ferry of Washington).
From the year authorization, the FHWA reserves up to 1.5
percent for their administration of the funds. The BIADOT and
the FLH develop a plan for using the remaining funds. This plan
includes operating expenses for the Federal Lands Highway
Coordinated Technology Implementation Program (CTIP); the Local
Technical Assistance Program (LTAP) centers for tribal
governments; and BIA administration (not to exceed 6 percent,
as authorized in the annual Interior Appropriations Act since
1984). The BIADOT administers transportation planning studies
for the reservations, bridge inspections, and the updating of
the road inventory. In addition, activities such as public
outreach to tribes and the negotiated rulemaking are funded and
managed by the BIA. An additional 2 percent of the IRR funds
are set-aside for transportation planning by tribal
governments.
Beginning in March 1999, the Secretary of the Interior
(Secretary) established a negotiated rulemakng committee to
begin developing procedures and a funding formula for the IRR
program. To date, approximately 14 meetings have been held at
various locations around the country. The committee is composed
of 29 tribal representatives and 13 representatives of the
Federal government. In addition to completing work on the
regulations and the formula, the committee is also tasked with
providing a mechanism to distribute funding in FY 2000.
TEA-21 funding in FY 2000 could not be distributed without
an authorized funding formula. In addition, approximately $18.3
million were provided by the FY 2000 Department of
Transportation Appropriations Act. As part of this committee
consensus to distribute the critically needed funding to
projects and awaiting tribal transportation needs, the
committee made recommendations to the Secretary on the
distribution of FY 2000 funding. They recommended a mechanism
to distribute the additional $18.4 million to the tribes with
inadequate transportation planning and to reservations with
deficient IRR bridges. Following this direction the Secretary
published a Notice for public comment recommending that the FY
2000 IRR funding be distributed in accordance with the Relative
Needs allocation formula. As an emergency measure, one half of
the FY 2000 funds were distributed upon publication of the
temporary rule of February 15, 2000. After receiving and
reviewing comments from this first notice the Secretary
published a second temporary rule on June 16, 2000, to
distribute the remaining FY 2000 IRR funds. The second rule
also addressed and corrected the distribution data affecting
two states in which no data was provided.
The goal of the committee is to publish a Notice of
Proposed Rulemaking by the end of this calendar year.
Adjustments will need to be made on the implementation of the
rules and the funding formula. The committee has made
noticeable progress in the last 6 months.
S. 2283 proposes the following additions and changes to
Title 23 Highways. First, the bill proposes to make the IRR
program an exception to the obligation ceiling. In fiscal years
1998, 1999 and 2000, approximately $91 million of the IRR
contract authority was affected by the obligation limitation
and was not available for the IRR program. The BIA is in favor
of a provision that will provide 100 percent obligation
limitation for the IRR program, as was the case between fiscal
years 1983 and 1987 when the IRR program became part of the
Federal Land Highway program until the enactment of TEA-21. The
FY 2001 President's Budget proposed to provide the IRR program
with 100 percent obligation limitation. However, we oppose
making this program mandatory. The impact to the program has
been such that since the enactment of TEA-21, approximately 341
more miles of improved earth roads or 270 more miles of paved
surface roads could have been constructed based on the approved
Transportation Improvement Program (TIP). The impact upon
tribal projects is that approximately 169 more tribes could
have had their projects funded through the end of FY 1999.
Second, S. 2283 proposes to establish a pilot program
within the FHWA-FLH program. We currently have to pilot
projects initiated under the Office of Self-Governance. These
demonstration projects were advanced as pilots to assist the
participating tribes in fully implementing provisions of the
law in the abundance of revised regulations for the IRR program
(25 CFR 70) which are currently being addressed in the
negotiated rulemaking. We have participated with the FHWA in
the negotiations of these pilots. The establishment of direct
pilots, as proposed by S. 2283, with FHWA does not address the
involvement of the facility owner. In the case of the IRR,
approximately one half of the IRR system is ``owned'' by the
United States. As the facility owner, the responsibility for
these systems remains with the BIA, not the FHWA or the tribes.
For non-BIA systems on the IR, a similar condition exists
wherein the local public authority will be responsible for
those roads. As the responsible ``facility owner'', it is
necessary for the BIA to review and approve the performance of
functions such as the environmental and historic preservation
activities as well as approval of the plans, specifications and
the engineer's estimate.
The use of these roads is not exclusive to tribes, they are
public roads. As a local public authority, tribes can plan,
participate and prioritize projects with the other public
authorities, but the final approval of road improvements
remains with the facility owner. This view of project
involvement and the approval of improvements is shared by the
FHWA. It is not clear what the Secretary's Trust Responsibility
is in the FHWA pilots.
Third, S. 2283 proposes to limit the amount of funding
available for the BIA to perform all program management and
project functions within the amount available as ``not to
exceed 6 percent of the contract authority available from the
Highway Trust Fund''. During the debate regarding TEA-21, the
states argued that they should be given the flexibility to
spend some of thetrust fund money for management costs. The
states argued that in 1994 they spent an amount comparable to about 5.5
percent of their own state funds managing all Highway Trust funded
programs. In response to arguments, when Congress enacted TEA-21, it
decided to go beyond the appropriations process and create a permanent
fix in Section 302 of Title 23 which addresses management costs for
states and agencies.
To limit the BIA or any highway agency to a fixed amount,
such as 6 percent, will impact the delivery of services
provided by the program management arm as well as the
engineering (preconstruction and construction) arm of the BIA
to projects not contracted by tribes under the Indian Self-
Determination and Education Assistance Act, as amended. The
recent passage of TEA-21 also repealed the long standing
provision in 23 U.S.C. 106(c) which limited the amount of
construction engineering to 15 percent of the construction
costs. Since 1994, we have found that the average cost per year
of engineering alone on both contracted functions as well as
within the BIA transportation workforce, was about 20.5 percent
combined (13 percent for PE and 7.5 percent for CE). We are
opposed to any provision that limits the amount of funding for
program management and project related preconstruction and
construction engineering costs to a fixed amount of 6 percent.
Our final concern with S. 2283 is language within Section
2(c) which proposes that an Indian tribe or tribal organization
may advance a project to construction if the tribe provides
assurances that the construction will meet or exceed proper
health and safety standards. Under Section 403(e)(2) of the Act
it states, ``In all construction projects performed pursuant to
this title, the Secretary shall ensure that proper health and
safety standards are provided in the funding agreement''.
The Department would like to relate some Tribal views we
have heard from several negotiated rulemaking meetings. One
view is that the Secretary may carry out his existing
responsibility under Section 403(e)(2) of the Act by delegating
this health and safety responsibility to the tribes. The
difficulty with this view is that the Secretary cannot ensure
health and safety since the tribe is performing the health and
safety function and the Secretary is not monitoring performance
during the design and construction process. Thus, under this
scenario, the Secretary has no responsibility for the outcome
of the construction project involved during the design and
construction process.
A second view, as reflected in S. 2283, is that the tribe
will provide health and safety assurances for the construction
in the plans and specifications and that the plans are approved
by a licensed professional engineer. However, this only covers
health and safety prior to actual construction. It also appears
to eliminate the Secretary's health and safety responsibility
during the actual construction process and does not provide
authority for the Secretary to (1) monitor the construction
process to ensure that health and safety standards are met; (2)
ensure before construction begins the adequacy of the tribal
inspection system, including license engineers; (3) review
major change orders to ensure that a safe facility is
constructed; (4) if necessary, decline proposals that are
unsafe or suspend construction that does not meet health and
safety standards until corrective measures are proposed; and
(5) if necessary, decline major change orders that do not meet
health and safety requirements.
Either of these views assumes that the Secretary can ensure
health and safety without any authoritative involvement in the
design and construction of the project. It would be unfair and
unreasonable to assume that the Secretary has a trust or any
other responsibility for safe construction under either of
these approaches. We are also concerned that the Secretary
would not have the ability to (1) identify construction that
does not meet the plan or specification requirements, which may
result in an unsafe or poorly constructed facility that would
require removal (demolition) or major reconstruction, and (2)
to identify hazards that could subject construction workers and
the traveling public to unsafe conditions during actual
construction.
Another view is that the ability to ensuring health and
safety is covered under the government's trust responsibility.
Any statutory amendment giving total control of construction to
the tribes, as in S. 2283, should clearly provide that the
United States has no trust or any other responsibility for the
outcome of the construction. Otherwise, S. 2283 should be
amended to allow the Secretary authority to monitor
construction, similar to Section 403(e)(2) of the Act.
Furthermore, the health and safety provisions of S. 2283
appear to change Title I, which applies to hospital
construction for the Indian Health Service, irrigation projects
for the Bureau of Reclamation, school construction for the BIA
and dam safety construction, among others. This would appear to
remove Secretarial monitoring for health and safety for all
Title I and Title IV construction, as well.
In conclusion, the Department can and does support
providing 100 percent obligation limitation to the IRR program
as was proposed in the President's FY 2001 budget. However, the
Department does not support the first provision that would make
the program mandatory. We do not support the three provisions
of S. 2283 that would limit the ability of the BIA to meet its
responsibility adequately for the proper management, design and
construction of Indian reservation roads.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Kevin Gover,
Assistant Secretary for Indian Affairs.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill are required to be set out in the accompanying
Committee report. The Committee finds that enactment of S. 2283
will result in the following changes to 23 U.S.C. Sec. Sec. 101
et seq., with existing language which is to be deleted in
bolded brackets and new language to be added in italic:
23 U.S.C. 104 (notes)
obligation ceiling
(c) Distribution of Obligation Authority.--For each of
fiscal years 1998 through 2003, the Secretary shall--
(1) not distribute obligation authority provided by
subsection (a) [of this note] for such fiscal year for
amounts authorized for administrative expenses and
programs funded from the administrative takedown
authorized by section 104(a) of title 23, United States
[Code] [subsec. (a) of this section], [and] Code,
amounts authorized for the highway use tax evasion
program and the Bureau of Transportation Statistics,
and for each of fiscal years 2001 through 2003, amounts
authorized for Indian reservation roads under section
204 of title 23, United States Code;
23 U.S.C. 202(d)(3)
(d)(3) 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
under this title for Indian reservation roads and for
highway bridges located on Indian reservation roads to
pay for the costs of programs, services, functions, and
activities, or portions thereof, that are specifically
or functionally related to the cost of planning,
research, engineering, and construction of any highway,
road, bridge, parkway, or transit facility that
provides access to or is located within the reservation
or community of an Indian tribe shall be made
available, upon request of the Indian tribal
government, to the Indian tribal government for
contracts and agreements for such planning, research,
engineering, and construction in accordance with the
Indian Self-Determination and Education Assistance Act.
(B) Exclusion of agency participation.--Funds for
programs, functions, services, or activities, or
portions thereof, including supportive administrative
functions that are otherwise contractible to which
subparagraph (A) applies, shall be paid in accordance
with subparagraph (A) without regard to the
organizational level at which the Department of the
Interior that has previously carried out such programs,
functions, services, or activities.
(C) Federal lands highway program demonstration
project.--
(i) In general.--The Secretary shall
establish a demonstration project under which
all funds made available under this title for
Indian reservation roads and for highway
bridges located on Indian reservation roads are
provided for in subparagraph (A), shall be made
available, upon request of the Indian tribal
government involved, to the Indian tribal
government for contracts and agreements for the
planning, research, engineering, and
construction described in such subparagraph in
accordance with the Indian Self-Determination
and Education Assistance Act.
(ii) Exclusion of agency participation.--In
accordance with subparagraph (B), all funds for
Indian reservation roads and for highway
bridges located on Indian reservation roads to
which clause (I) applies, shall be paid without
regard to the organizational level at which the
Federal lands highway program has previously
carried out the programs, functions, services,
or activities involved.
(iii) Selection of participating tribes.--
(I) Participants.--
(aa) In general.--The
Secretary shall select 12
geographically diverse Indian
tribes in each fiscal year from
the applicant pool described in
subclause (II) to participate
in the demonstration project
carried out under clause (I).
(bb) Consortia.--Two or more
Indian tribes that are
otherwise eligible to
participate in a program or
activity to which this title
applies may form a consortium
to be considered as a single
tribe for purposes of becoming
part of the applicant pool
under subclause (II).
(cc) Funding.--An Indian
tribe participating in the
pilot program under this
subparagraph shall receive
funding in an amount equivalent
to the funding that such tribe
would otherwise receive
pursuant to the funding formula
established under section
1115(b) of the Transportation
Equity Act for the 21st
Century, plus an additional
percentage of such amount, such
additional percentage to be
equivalent to the percentage of
funds withheld during the fiscal
year involved for the road program
management costs of the Bureau of
Indian Affairs under section 202(f)(1)
of title 23, United States Code.
(II) Applicant pool.--The applicant
pool described in this subclause shall
consist of each Indian tribe (or
consortium) that--
(aa) has successfully
completed the planning phase
described in subclause (III);
(bb) has requested
participation in the
demonstration project under
this subparagraph through the
adoption of a resolution and
other official action by the
tribal governing body; and
(cc) has, during the 3-fiscal
year period immediately
preceding the fiscal year for
which participation under this
subparagraph is being
requested, demonstrated
financial stability and
financial management capability
through a showing of no
material audit exceptions by
the Indian tribe during such
period.
(III) Criteria for determining
financial stability and financial
management capacity.--For purposes of
this subparagraph, evidence that,
during the 3-year period referred to in
subclause (II)(cc), an Indian tribe had
no uncorrected significant and material
audit exceptions in the required annual
audit of the Indian tribe's self-
determination contracts or self-
governance funding agreements with any
Federal agency shall be conclusive
evidence of the required stability and
capability.
(IV) Planning phase.--An Indian tribe
(or consortium) requesting
participation in the project under this
subparagraph shall complete a planning
phase that shall include legal and
budgetary research and internal tribal
government and organization
preparation. The tribe (or consortium)
shall be eligible to receive a grant
under this subclause to plan and
negotiate participation in such
project.
23 U.S.C. 202
(f) Indian Reservation Road, Administration.--
(1) In general.--Notwithstanding any other provision
of law, not to exceed 6 percent of the contract
authority amounts made available from the Highway Trust
Fund to the Bureau of Indian Affairs shall be used to
pay the administrative expenses of the Bureau for the
Indian reservation roads program and the administrative
expenses related to individual projects that are
associated with such program. Such administrative funds
shall be made available to an Indian tribal government,
upon the request of the government, to be used for the
associated administrative functions assumed by the
Indian tribe under contracts and agreements entered
into pursuant to the Indian Self-Determination and
Education Assistance Act.
(2) Health and safety assurances.--Notwithstanding
any other provision of law, an Indian tribe or tribal
organization may commence road and bridge construction
that under the Transportation Equity Act for the 21st
Century (25 U.S.C. 104) that is funded through a
contract or agreement under the Indian Self-
Determination and Education Assistance Act so long as
the Indian tribe or tribal organization has--
(A) provided assurances in the contract or
agreement that the construction will meet or
exceed proper health and safety standards;
(B) obtained the advance review of the plans
and specifications from a licensed professional
who has certified that the plans and
specifications meet or exceed the proper health
and safety standards; and
(C) provided a copy of the certification
under subparagraph (B) to the Bureau of Indian
Affairs.