79–010

Calendar No. 796

106TH CONGRESS REPORT

2d Session " ! SENATE 106–406

AMENDING THE INDIAN RESERVATION ROADS PROGRAM

SEPTEMBER 11, 2000.—Ordered to be printed

Mr. CAMPBELL, from the Committee on Indian Affairs,

submitted the following

REPORT

[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 devel-
2

1S. Rep. No. 106–226, at 1 (2000).

2Previously, 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.

opment.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.

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 rulemaking procedures to implement key elements of the Act, including

the development of a new funding formula.

Under § 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. §§ 450 et seq).3

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
3

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.

6The 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 nonBIA 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). 7 Id.

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

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.

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 nonIRR 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

Under section 1102 of TEA–21, there is an automatic percentage

deducted from the Federal Aid Highway Programs, including the
4

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. 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. 10This amendment will fully fund the IRR program by assigning it to § 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.

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.

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.

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

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
5

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.’’

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.

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:
6

12See 25 U.S.C. § 458cc(e)(1); 25 C.F.R. § 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.

* * * 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. § 7501 et seq.)

will provide additional means to ensure compliance and subject the

non-complaint tribe to the usual single audit penalties.13

The amendment is needed because the current BIA review process creates substantial delay, with tribes often forced to wait an en-
7

tire 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) FederalAid Highways program. CBO estimates that implementing the bill

would not have a significant impact on the federal budget. The bill
8

would not affect direct spending or receipts; therefore, pay-as-yougo 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.
9

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,
10

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
11

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 the trust 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
12

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
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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. §§ 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 øCode¿ [subsec. (a) of this section], øand¿ 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, in-
14

cluding 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—
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(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 selfgovernance 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—
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(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.

Æ